HomeMy WebLinkAboutRES 593 Draft 01 2024-2026 JNSY of p
COUNTY OF HAWAII l': `- ;.A;* STATE OF HAWAII
'..'n.'OF•NF,Jl
RESOLUTION NO. 593 26
A RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO AN AMENDED
ADMINISTRATIVE ORDER ON CONSENT AGREEMENT WITH THE UNITED •
STATES ENVIRONMENTAL PROTECTION AGENCY UNDER SECTION 1423 OF
THE SAFE DRINKING WATER ACT.
WHEREAS, Section 46-7 of the Hawai`i Revised Statutes requires the consent of the
Council in order for the County to enter into an agreement with the federal government or any
other public body respecting action to be taken pursuant to any of the powers granted to the
County by law and furnish, expend, and receive any funds or other assistance in connection with
projects being or to be undertaken pursuant to those powers; and
WHEREAS, in June of 2017,the County executed an intergovernmental agreement with
the United States Environmental Protection Agency(hereinafter"EPA") in the form of an
Administrative Order on Consent in Docket No. SDWA-UIC-AOC-2017-0002, a copy of which
is attached hereto as"ATTACHMENT A-1'; and
WHEREAS,the Administrative Order on Consent contained in ATTACHMENT A-1
required the County to, among other things, close the large-capacity cesspools(hereinafter
"LCC") in Pahala and Na`alehu; and
WHEREAS, in July of 2022,the County executed an additional intergovernmental
agreement with the EPA in the form of a Revised Administrative Order on Consent, a copy of
which is attached hereto as"ATTACHMENT A-2"; and
WHEREAS, despite the requirement set forth in Section 46-7 of the Hawai`i Revised
Statutes,there is no evidence that either the original Administrative Order on Consent or the
Revised Administrative Order on Consent were presented to the Council for its consideration and
consent; and
WHEREAS, on April 8,2026,the County requested a two-year deadline extension for
the Pahala LCC Closure Project and a five-year deadline extension for the Na`alehu LCC
Closure Project, due to identified contractual, financial, and staffing constraints; and
WHEREAS, after reviewing the County's request,the EPA agreed,via letter dated May
13,2026, a copy of which is attached hereto as"ATTACHMENT A-3",to extend the
Pahala LCC closure deadline from January 22, 2027,to January 31,2029, and extend the
Na`alehu LCC closure deadline from December 31,2027,to December 31,2032; and
WHEREAS,to effectuate these deadline extensions,the EPA issued a proposed
Amended Administrative Order on Consent, a copy of which is attached hereto as
"ATTACHMENT A-4"and incorporated herein by reference; and •
WHEREAS, entering into this Amended Administrative Order on Consent constitutes a
binding order on the County, subject to penalties for failure to comply under section 1423(c)of
the Safe Drinking Water Act;now,therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAI`I that,
pursuant to Section 46-7 of the Hawai`i Revised Statutes,the Mayor is hereby authorized to enter
into the Amended Administrative Order on Consent with the EPA as contained in
ATTACHMENT A-4.
BE IT FURTHER RESOLVED that the Department of Environmental Management is
hereby requested to provide the Council with concurrent updates subsequent to mandatory report
submissions to the EPA.
BE IT FINALLY RESOLVED that the County Clerk shall transmit a copy of this
resolution to Daniel Girvan,Director of Environmental Management; and Diana Mellon-Lacey,
Deputy Corporation Counsel.
Dated at Hilo ,Hawai`i,this 8th day of July ,20 26.
INTRODUCED BY:
4•R .
CO CIL ER, COUNTY OF HAWAI`I
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo,Hawaii GALIMBA X
HUSTACE X
I hereby certify that the foregoing RESOLUTION was by INABA X
the vote indicated to the right hereof adopted bythe COUNCIL of the KAGIWADA X
County of Hawai`i on July 8, 2026
KANEALI`I-KLEINFELDER X
KIERKIEWICZ X
ATTEST: KIMBALL X
ONISHI X
VILLEGAS X
7°W 9 0 0 0
Reference: C-936/GOEAC-142
COUNTY CLERK CHAIRPERSON&PRESIDING FFICER RESOLUTION NO. 9
I
2 LRB IIUIIOIIIII Il III1111
JN"m sr UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
C 'a REGION 9
4zro2 75 Hawthorne Street
`'`44.no`° San Francisco,CA 94105-3901
IN THE MATTER OF: ) Docket No. SDWA-UIC-AOC-2017-0002
)
County of Hawaii, ) [V$] ADMINISTRATIVE
) ORDER ON CONSENT
)
Respondent. ) Proceeding under Sections 1423(c)of the
) Safe Drinking Water Act,42 U.S.C. § 300h-2(c).
)
)
I. INTRODUCTION
1, The United States Environmental Protection Agency("EPA")and the County of Hawai`i
("Respondent")voluntarily enter into this Administrative Order on Consent("Consent Order"or"AOC").
Respondent owns,controls,and operates seven large capacity cesspools("LCCs")located in the Pahala
and Na`alehu communities in Hawai`i.
2. EPA alleges that Respondent has violated and continues to violate requirements of the
federal Safe Drinking Water Act("SDWA"),42 U.S.C.§300f et seq.,and 40 C.F.R. §§ 144.84(b)(2)and
144,88,which required owners or operators of existing large capacity cesspools("LCCs")to close them
no later than April 5,2005.
3. This Consent Order directs Respondent to remedy the ongoing violations relating to the
continued operation of LCCs in the Pahala and Na`alehu communities of Hawaii in accordance with the
compliance schedules set forth in this Consent Order.
4. EPA and Respondent recognize that this Consent Order was negotiated in good faith and
that Respondent has fully cooperated with the EPA. •
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ATTACHMENT A-1
,
II. JURISDICTION
5. EPA enters into and issues this Consent Order under the authority vested in the EPA
Administrator by section 1423(c)of the SDWA,42 U.S.C. §300h-2(c).
6. The EPA Administrator has delegated the authority to take these actions to the Regional
Administrator for EPA,Region 9,through EPA Delegation 9-34(May 11, 1994).This authority has been
further delegated to the Director ofEPA Region 9's Enforcement Division by Regional Delegation
R9-9-34(Feb. 1 I,2013).
7. The Director of the Enforcement Division of EPA Region 9 and Respondent,together
referred to as"the Parties,"enter into this Consent Order voluntarily and hereby agree to the terms of and
to the issuance of this Consent Order.Respondent agrees not to contest EPA's authority or jurisdiction to
issue this Consent Order in this or in any subsequent proceeding to enforce the terms of this Consent
Order.This Consent Order constitutes an enforceable agreement between Respondent and EPA.
8. Respondent agrees to undertake and complete all actions required by this Consent Order.
Respondent waives the opportunity to receive 30-days notice of this AOC,and to request a hearing on or
to appeal this AOC under sections I423(c)(3)(A)and 1423(c)(6)of the SDWA,42 U.S.C. §§300h-
2(c)(3)(A)and 300h-2(c)(6).
III. PARTIES BOUND
9. This AOC shall bind Respondent and its officials,officers,directors,agents,employees,
attorneys,successors,and assigns,and all persons,contractors,and consultants acting in concert with
Respondent.
10. The undersigned signatory for Respondent certifies that he or she is authorized to execute
this Consent Order and legally bind the Respondent.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
I I. Pursuant to Part C of the Act,42 U.S.C. §300h through 300h-8,EPA has promulgated
regulations establishing minimum requirements for Underground Injection Control("UIC")programs to
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prevent underground injection that endangers drinking water sources.These regulations are set forth at 40
C.F.R.Part 144.
12. "Underground injection"means the subsurface emplacement of fluids by well injection.
42 U.S.C. §300h(dX1);40 C.F.R. § 144.3.
13. "Well injection"means the subsurface emplacement of fluids through a well.40 C.F.R.
§ 144.3.
14. A"cesspool" is a"drywell,"which in turn is a"well,"as those terms are defined in 40
C.F.R. § 144.3."Large capacity cesspools"("LCCs")include"multiple dwelling,community or regional
cesspools,or other devices that receive sanitary wastes,containing human excreta,which have an open
bottom and sometimes perforated sides."40 C.F.R.§ 144.81(2).LCCs do not include single family
residential cesspools or non-residential cesspools that receive solely sanitary waste and have the capacity
to serve fewer than 20 persons per day.Id.
15. UIC program regulations classify LCCs as Class V UIC injection wells.40 C.F.R.
§ I44.80(e).
16. Class V UIC injection wells are considered a"facility or activity"subject to regulation
under the UIC program.40 C.F.R. § 144.3.
17. "Owner or operator"means the owner or operator of any"facility or activity"subject to
regulation under the UIC program.40 C.F.R. § 144.3.
18. The"owner or operator"of a Class V UIC well"must comply with Federal UIC
requirements in 40 C.F.R. parts 144 through 147,"and must also"comply with any other measures
required by States or an EPA Regional Office UIC Program to protect[underground sources of drinking
water]."40 C.F:R. § 144.82.
19. Owners or operators of existing LCCs were required to have closed those LCCs no later
than April 5,2005.40 C.F.R. §§ 144.84(b)(2)and 144.88(a)(1).
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20. Pursuant to Section 1422(c)of the SDWA,42 U.S.C. §300h-1(c),and 40 C.F.R.
§ 147.601, EPA administers the UIC program in the State of Hawaii.This UIC program consists of the
program requirements of 40 C.F.R.Parts 124, 144, 146, 147(Subpart M),and 148.
21. Since at least April 30,2010,Respondent has owned and operated two cesspools that
serve the Pahala Community(i.e.,community cesspools)on Tax Map Key parcels 3-9-6-016-041 and 3-
9-6-002-024("Pahala Community Cesspools").Respondent is an"owner or operator"of those cesspools
as that term is defined at 40 C.F.R. § 144.3.
22. Since at least April 30,2010,Respondent has owned and operated three community
cesspools located in the Na`alehu Community,two of which are located on Tax Map Key parcels 3-9-5-
024-011 and 3-9-5-024-001,respectively,and the third of which is situated between Tax Map Key parcels
3-9-5-024-010 and 3-9-5-024-009 ("Na`alehu Community Cesspools").Respondent is an"owner or
operator"of those cesspools as that term is defined at 40 C.F.R. § 144.3.
23. Since at Ieast July 31, 1985,Respondent has owned two cesspools serving the Pahala
Elderly Apartments, located on Tax Map Key parcel 3-9-6-017-038("Pahala Elderly Apartments
Cesspools").Respondent is an"owner"of those cesspools as that term is defined at 40 C.F.R. § 144.3.
24. EPA alleges that each of the cesspools referred to in Paragraphs 21,22,and 23,at all
times relevant to this Consent Order,served multiple dwellings,and thus each is considered an LCC
pursuant to 40 C.F.R. § 144.81(2).
25. Respondent failed to close the LCCs referenced in Paragraph 23 by April 5,2005,as
required by 40 C.F.R. §§ 144.84(b)(2)and 144.88(a)(1).In addition,Respondent failed to close the LCCs
referenced in Paragraphs 21 and 22 by April 30,2010.
26. EPA therefore alleges that Respondent is in continuing violation of 40 C.F.R.
§§ 144.84(b)(2)and 144.88(a)(1).
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27. Pursuant to section 1423(c)(1)of the SDWA,42 U.S.C. §300h-2(c)(1),EPA may issue
an order requiring compliance against any person who violates the SDWA or any requirement of an
applicable UIC program.
V. COMPLIANCE PROVISIONS
28. Based on the foregoing findings and pursuant to EPA's authority under section
1423(c)(1)of the SDWA,42 U.S.C. §300h-2(c)(1),Respondent agrees and is hereby ORDERED to
complete the following work:
A. Pahala Community Cesspool Closure Project
29. Respondent shall take appropriate measures to fully and properly comply with the SDWA
with respect to the Pahala Community Cesspools identified in Paragraph 21,including constructing a
secondary wastewater treatment facility to serve the Pahala community("Pahala Wastewater Treatment
Facility"),closing the Pahala Community Cesspools,and replacing and expanding the wastewater
collection system serving Pahala Community.As soon as practicable,but no later than the deadlines
specified herein, Respondent shall complete the following milestones to achieve compliance with the
SDWA:
a. By August 27, 2017,complete a Phase 1 EnvironmentaI Site Assessment
("ESA")and Preliminary Engineering Report.If required,a Phase 2 ESA shall be completed by May 18,
2018;
b. By December 15,2017, hold initial public meeting with affected community;
c. By July 5,2018,acquire land for Pahala Wastewater Treatment Facility;
d. By September 11,2018,complete Environmental Information Document("ED")
for Pahala Wastewater Treatment Facility and submit EID to EPA;
e. By May 24,2019,complete design of new collection system;
f. By September 18,2019,complete design of Pahala Wastewater Treatment
Facility.The Pahala Wastewater Treatment Facility shall be designed in accordance with good
engineering practices and capable of servicing all residential properties currently connected to the Pahala
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Community Cesspools,plus a minimum of sixty-five(65)additional properties,to be identified by
Respondent.Design will be considered complete when Respondent receives approval from DOH to begin
construction;
g. By May 20,2021,complete construction of the Pahala Wastewater Treatment
Facility in accordance with Paragraph 36 of this Consent Order.
h. By June 30,2021,connect the existing wastewater collection system to the
Pahala Wastewater Treatment Facility,and properly close(i.e.,"abandon"as that term is defined by the
Hawaii Department of Health("DOH")the Pahala Community Cesspools in accordance with Paragraph
37 of this Consent Order and 40 C.F.R. § 144.89.The Pahala Wastewater Treatment System shall be fully
operational and capable of treating all wastes collected via the existing wastewater collection system by
this date.
i. By December 16,2021,replace the wastewater collection system serving the
properties currently connected to the Pahala Community Cesspools and connect the new collection
system to the Pahala Wastewater Treatment Facility.A minimum of sixty-five(65)additional properties
shall be made accessible to the wastewater collection system in accordance with and as that term is
defined in Chapter 21 of the Hawaii County Code.All properties that are thus made accessible to the
wastewater collection system and that are used for human occupancy,employment,recreation,or other
purposes will be required to connect to the wastewater collection system by no later than January 25,
2022.Respondent shall take all feasible and appropriate actions to ensure that all such properties are
connected by that date.
30. Respondent has developed the Pahala Compliance Plan, included as Attachment A to this
Consent Order,which includes a description of,and schedule for activities necessary to carry out the
work required by Paragraph 29 (a)through(i).Respondent shall implement the Pahala Compliance Plan
in accordance with the deadlines specified in this Consent Order.
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B. Na`alehu Community Cesspool Closure Project
31. Respondent shall take appropriate measures to fully and properly comply with the SDWA
with respect to the Na`alehu Community Cesspools including constructing a secondary wastewater
treatment facility to serve the Na`alehu community("NWalehu Wastewater Treatment Facility"),closing
the Na`alehu Community Cesspools identified in Paragraph 22,and replacing and expanding the existing
wastewater collection system serving Na`alehu Community.As soon as practicable,but no later than the
deadlines specified herein;Respondent shall complete the following milestones to achieve compliance
with the SDWA:
a. By January 4,2018,complete Phase 1 ESA.The need to perform a Phase 2 ESA
based on information discovered during Phase I shall be considered aforce majeure event,as defined in
Paragraph 50 of this Consent Order. If a Phase 2 ESA is required,the County shall notify EPA of any
anticipated delay in compliance with the requirements of this Consent Order following the procedures
specified in Paragraph 51 of this Consent Order,and shall diligently and expeditiously pursue its
completion.Upon notification of anticipated delay,EPA may approve in writing an extension of
deadlines included in this Consent Order that are affected by the delay in accordance with Paragraph 52
of this Consent Order.
b. By May 28,2018,hold initial public meeting with affected community;
c. By June 27,2018,acquire land for Na`alehu Wastewater Treatment Facility;
d. By October 25,2018,complete Preliminary Engineering Report;
e. By October 5,2019,complete Environmental Assessment for Na`alehu
Wastewater Treatment Facility in accordance with H.R.S.Chapter 343;
f. By June 28,2020,complete design of Na`alehu Wastewater Treatment Facility.
The Na`alehu Wastewater Treatment Facility shall be designed in accordance with good engineering
practices and capable of servicing all residential properties currently connected to the three NA`alehu
Community Cesspools,plus a minimum of thirty(30)additional properties,to be identified by
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Respondent.Design will be considered complete when Respondent receives approval from DOH to begin
construction;
g. By July 21,2020,complete design of new collection system;
h. By February 28,2022,complete construction of the Na`alehu Wastewater
Treatment Facility in accordance with Paragraph 36 of this Consent Order.
i. By April 17,2022,connect the existing wastewater collection system to the
Na`alehu Wastewater Treatment Facility,and properly close(i.e.,"abandon"as that term is defined by
DOH)the Na`alehu Community Cesspools in accordance with Paragraph 37 of this Consent Order and 40
C.F.R. § 144.89.The Na`alehu Wastewater Treatment System shall be fully operational and capable of
treating all wastes collected via the existing wastewater collection system by this date.
j. By September 30,2022,replace the wastewater collection system serving the
properties currently connected to the Na`alehu Community Cesspools,and connect the new collection
system to the Na`alehu Wastewater Treatment Facility.A minimum of thirty(30)additional properties
shall be made accessible to the wastewater collection system in accordance with and as that term is
defined in Chapter 21 of the Hawaii County Code.All properties that are thus made accessible to the
wastewater collection system and that are used for human occupancy,employment,recreation,or other
purposes will be required to connect to the wastewater collection system by no later than November 29,
2022.Respondent shall take all feasible and appropriate actions to ensure that all such properties are
connected by that date.
32. Respondent has developed the Na`alehu Compliance Plan,included as Attachment B to
• this Consent Order,which includes a description of,and schedule for activities necessary to carry out the
work required by Paragraph 31 (a)through(j).Respondent shall implement the Na`alehu Compliance
Plan in accordance with the deadlines specified in this Consent Order.
C. Pahala Elderly Apartments Cesspool Replacement Project
33. Respondent shall take appropriate measures to fully and properly comply with the SDWA with
respect to the Pahala Elderly Apartments Community Cesspools described in Paragraph 23,including
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replacing the Pahala Elderly Apartments Cesspools with one or more individual wastewater systems
("IWSs")that comply with DOH requirements as soon as practicable,but by no later than September 28,
2018.Also by that date,Respondent shall properly close(i.e.,"abandon"as that term is defined by DOH)
the Pahala Elderly Apartment Cesspools in accordance with Paragraph 37 of this Consent Order.
34. Respondent has developed the Pahala Elderly Apartments Compliance Plan,included as
Attachment C.Respondent shall implement the Pahala Elderly Apartments Compliance Plan in
accordance with the deadlines specified in this Consent Order.
D. General Requirements
35. Respondent shall inform the EPA in writing if any new information or circumstances
cause Respondent to modify any planned actions or schedule for achieving compliance with this Consent
Order.Respondent may,where appropriate,petition for an extension of any deadline contained in
Paragraph 29(a)through(i),Paragraph 31 (a)through(j),or Paragraph 33.Any such request should be
made according to the procedures set forth in Subsection F of this Consent Order.Modification of any
particular deadline shall only become effective upon approval by EPA and shall not affect any other
deadlines under this Consent Order not specifically addressed in the approved modification.
36. In complying with Paragraphs 29(e)-(g)and 31(f)-(h)of this Consent Order(design and
construction of collection systems and wastewater treatment facilities),Respondent must follow any
applicable Hawaii state or local requirements for design,construction,operation,and permitting of such
facilities.Construction of the Pahala Wastewater Treatment Facility and the NWRlehu Wastewater
Treatment Facility shall be considered complete once DOH issues Respondent an approval to operate.
37. In complying with Paragraphs 29(h),31(i),and 33 of this Consent Order(cesspool
closures),Respondent must follow DOH's well abandonment procedures and techniques and any other
requirements of DOH's UIC program.Respondent shall notify DOH when closure of each LCC is
complete.EPA will consider the LCCs to be closed when either(a)DOH issues an Injection Well
Cesspool Backfilling Final Completion Report, or(b)Respondent submits to EPA a completed Large
Capacity Cesspool Backfil[ing Final Completion Report.
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38. Respondent shall submit to EPA copies of DOH's"Injection Well Cesspool Backfilling
Final Completion Report"for each cesspool referenced in this AOC within ten(10)days of receipt from
DOH.Documents should be sent to the EPA Region 9 Compliance Officer,and the EPA Region 9 LCC
Project Coordinator at the addresses specified in Paragraphs 61 and 62 of this Consent Order.
39. Respondent shall diligently pursue all necessary federal and state permits and approvals,
including but not limited to compliance with the National Environmental Policy Act("NEPA"),the
National Historic Preservation Act("NHPA"),and the Endangered Species Act("ESA"),as appropriate.
40. Subject to delays associated with force majeure as described in Subsection F,Respondent
shall fully implement each requirement of this Consent Order, including meeting the deadlines contained
in Paragraph 29(a)through(h),Paragraph 3 I(a)through(k),and Paragraph 33.Respondent's failure to
fully implement all requirements of this Consent Order in the manner and timeframe required shall be
deemed a violation of this Consent Order.
41. Respondent's failure to comply with all of the applicable requirements of the SDWA and
40 C.F.R.Part 144 may subject Respondent to additional enforcement actions,including but not limited •
to judicial or administrative actions.
42. Where work under this AOC is being performed using federal grant money directly
administered by EPA,including funds provided in Congressional Earmark Grant XP-96942401,
Respondent shall ensure that the project schedule under such grant is consistent with the requirements and
schedules included in this Consent Order.
E. Stipulated Penalties
43. If Respondent fails to comply with any provision of this Consent Order,Respondent
agrees to pay upon EPA's demand the stipulated penalties set forth in this paragraph unless EPA has
excused Respondent's delay according the procedures provided in Subsection F of this Consent Order.
Stipulated penalties shall begin to accrue on the date performance is due,and are calculated as follows:
a. $150 per day per violation for the first through the thirtieth day of
noncompliance;
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b. $300 per day per violation for the thirty-first through the sixtieth day of
noncompliance;
c. $500 per day per violation for the sixty-first day of violation and beyond.
44. Respondent must pay the stipulated penalty within thirty(30)days of receipt of EPA's
stipulated penalty demand,according to the process provided in the demand.If any payment is not
received within thirty(30)calendar days of being due,interest,handling charges,and late payment
penalties will begin to accrue in the same manner as set forth at 31 U.S.C. §3717 and 40 C.F.R. § 13.11.
45. Neither the demand for,nor payment of,a stipulated penalty relieves Respondent of the
obligation to comply with any requirement or deadline of this Consent Order.
46. EPA may, in the unreviewable exercise of its discretion, elect to pursue any other
administrative or judicial remedies in lieu of assessing some or all of the stipulated penalties due under
this Consent Order.
47. EPA may, in the unreviewable exercise of its discretion,reduce or waive stipulated
penalties due under this Consent Order.
48. Respondent may pay the stipulated penalty by check(mail or overnight delivery),wire
transfer,Automated Clearing House(ACH),or online payment.Payment instructions are available at
http://www2.epa.gov/tinancialhnakepavment.Payments made by a cashier's check or certified check
must be payable to the order of"Treasurer,United States of America,"and delivered to the following
address:
U.S. Environmental Protection Agency
Fines and Penalties
•
Cincinnati Finance Center
P.O.Box 979077
St.Louis,Missouri 63197-9000
49. Respondent shall provide notice of stipulated penalty payments made pursuant to
Paragraph 48,accompanied by the title and docket number of this action,to the EPA Region 9
Compliance Officer at the address provided in Paragraph 61 below.
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F. Delays
50. "Farce majeure,"for purposes of this Consent Order, is defined as any event arising from
causes beyond Respondent's control,the control of any entity controlled by Respondent,or the control of
Respondent's contractors,which delays or prevents the performance of any obligation under this Consent
Order,despite Respondent's reasonable best efforts to fulfill the obligation.The requirement that
Respondent exercise"reasonable best efforts to fulfill the obligation"includes using reasonable best
efforts to anticipate any potential force majeure event and reasonable best efforts to address the effects of
any such event as it is occurring and/or after it has occurred,to prevent or minimize any resulting delay to
the greatest extent possible.Examples of events that are not force majeure include,but are not limited to,
increased costs or expenses of any work to be performed under this Consent Order,failure to diligently
pursue funding source(s)for work to be performed under this Consent Order including federal and state
funding sources,or normal inclement weather.
51. Respondent shall notify EPA in writing,within 10 business days,of any event that occurs
that causes or is likely to cause delay in compliance with any deadline specified in this Consent Order.
The notification should explain whether the delay was caused by force majeure,as defined in Paragraph
50, should describe the measures Respondent has taken and/or will take to prevent or minimize the delay,
and should specify the timetable by which Respondent intends to implement these measures to ensure
compliance with the applicable requirement or deadline. Respondent shall adopt all reasonable measures
to avoid or minimize delay.Submittal of the notice to EPA required by this paragraph does not,by itself,
extend any deadline or timeframe in this Consent Order.
52. If,upon receiving notice required under Paragraph 51,EPA agrees that the delay or
anticipated delay in compliance with this Consent Order has been or will be caused by circumstances that
constitute force majeure as defined in Paragraph 50,and upon request by Respondent,EPA may extend
the applicable compliance deadline.Modification of any particular deadline shall not affect any other
deadlines under this Consent Order unless expressly authorized in writing by EPA.
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53. Respondent has a burden of demonstrating,by a preponderance of the evidence,that the
actual or anticipated delay has been or will be caused by force majeure,that the duration of the delay was,
or will be warranted under the circumstances,that Respondent exercised or is using its best efforts to
avoid and mitigate the effects of the delay,and that Respondent complied with the requirements of this
subsection.
54. In the event that EPA does not agree that a delay in achieving compliance with the
requirements of this Consent Order has been or will be caused by force majeure,EPA will notify
Respondent in writing of EPA's decision and any delays will not be excused.EPA may demand stipulated
penalties for unexcused delay,as set forth in Subsection E. •
VI. REPORTING REQUIREMENTS
55. Semiannual Reports.Respondent shall submit compliance reports to the EPA Region 9
Compliance Officer and the EPA Region 9 LCC Project Coordinator twice per year,with the first report
(covering the period January 1,2017 through June 30,2017)due on July 3,2017,and the second report
due on January 1,2018. Subsequent reports shall be due on the first business day following each six-
month period thereafter.Each compliance report shall discuss Respondent's progress toward meeting the
milestones associated with each of the three projects identified in this AOC(the Pahala Community
Cesspool closure project,the Na`alehu Community Cesspool closure project,and the Pahala Elderly
Apartments Cesspool closure project).Upon notification to Respondent,EPA may require additional
status reports,or fewer status reports,and/or request additional documentation to support the compliance
reports for purpose of documenting compliance with this AOC.Respondent shall continue to submit
semiannual compliance reports until this AOC has been terminated pursuant to the terms of Section XIV
(Termination)of this Consent Order.
56. Each compliance report must be accompanied by a certification from Respondent's
authorized representative that Respondent has met each milestone identified in this AOC that falls within
the preceding quarter,or, if a milestone was missed,the compliance report must describe why that
milestone was missed and the date certain by which it will be met.
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57. Quarterly Meetings.Respondent must convene quarterly meetings(by teleconference or
at a centralized meeting location)with EPA to discuss Respondent's progress in complying with the
requirements and schedules of this Consent Order.Respondent shall be responsible for scheduling
meetings required under this paragraph to occur no later than twenty(20)days after the last day of every
calendar quarter(i.e.,by April 20th for the period January through March,by July 20th for the period
April through June,by October 20th for the period July through September,and by January 20th for the
period October through December).Respondent shall provide the EPA Compliance Officer and the EPA
LCC Coordinator with notice of the proposed meeting date at the addresses listed in Paragraphs 61 and 62
of this Consent Order at least fifteen(15)days in advance of the proposed meeting.The first quarterly
meeting shall take place no later than July 20,2017.
VII. SUBMISSIONS AND NOTIFICATIONS
58. All information and documents submitted pursuant to this Consent Order shall be signed
by a duly authorized representative of the County of Hawai`i.
59. The person signing Respondent's submissions under this Consent Order shall make the
following certification:
I cert under penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate information submitted. Based
on my inquiry of the person or persons who manage the system, or those persons
directly responsible for gathering the information, I certify that the information
submitted is, to the best of my knowledge and belief true, accurate, and complete. I
am aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing violations.
60. Submissions by Respondent shall be deemed made on the date they are sent
electronically,or on the date postmarked if sent by U.S.mail. Electronic submissions are preferred.
61. All submissions made pursuant to this Consent Order shall be sent to the EPA Region 9
Compliance Officer at the following address:
14
Mr.Jelani Shareem
U.S. EPA Region 9
SDWA/FIFRA Enforcement Office(ENF 3-3)
75 Hawthorne Street
San Francisco,CA 94105
shareem.ielani@epa.gov
epa.gov
62. Where the Consent Order so specifies,submissions shall also be sent to the EPA
Region 9 LCC Project Coordinator, at the following address:
Ms.Kate Rao
U.S. EPA Region 9
Drinking Water Protection Section(WTR 3-2)
75 Hawthorne Street
San Francisco, CA 94105
rao.kateeepa.gov
VIII. RECORD PRESERVATION
63. Until five(5)years after termination of this Consent Order,the Respondent shall preserve
and retain all records and documents now in its possession or control,or which come into its possession
or control,that relate in any manner to the performance of the tasks in this Consent.Order.Until five years
after termination of this Consent Order,the Respondent shall also instruct its agents to preserve all
documents,records,and information of whatever kind,nature or description relating to the performance
of the tasks in this Consent Order.
IX. SCOPE OF CONSENT ORDER
64. This Consent Order is not and shall not be construed to be a permit under the SDWA,nor
shall it in any way relieve or affect Respondent's obligations under the SDWA,or any other applicable
federal or State laws,regulations,or permits.Compliance with this Consent Order shall not be a defense
to any actions commenced pursuant to such applicable laws,regulations,or permits,nor does it constitute
a release.
65. Issuance of this Consent Order is not an election by EPA to forego any remedies
available to it under the law, including without limit any administrative,civil or criminal action to seek
15
penalties,fines,or other appropriate relief under the SDWA.EPA reserves all available legal and
equitable rights and remedies to enforce any violation cited in this Consent Order,and the right to seek
recovery of any costs and attorney fees incurred by EPA in any actions against Respondent for non-
compliance with this Consent Order.
66. This Consent Order shall in no way affect the rights of EPA or the United States against
any person not a party hereto.
X. WAIVER
67. Respondent waives any and all remedies,claims for relief and otherwise available rights
or remedies to judicial or administrative review which Respondent may have with respect to any issue of
fact or law set forth in this Consent Order, including,but not limited to,any right of judicial review of the
Consent Order under the Administrative Procedures Act. 5 U.S.C. §§701-708.
XI. INTEGRATION
68. This Consent Order,and any schedules,documents,plans,etc.that will be developed
pursuant to this Consent Order and become incorporated into this Consent Order,constitute the final,
complete and exclusive agreement and understanding among the Parties with respect to the settlement
embodied in this Consent Order.The Parties acknowledge that there are no representations,agreements or
understanding relating to the settlement other than those expressly contained in this Consent Order.
XII. SEVERABILITY
69. The provisions of this Consent Order shall be severable.If any provision is declared by a
court of competent jurisdiction to be unenforceable,then the remaining provisions shall remain in full
force and effect.
XIII. MODIFICATIONS OF CONSENT ORDER
70. Modification of this Consent Order including any plans or schedules developed pursuant
thereto shall be in writing and shall take effect only when agreed to in writing by both Parties.
16
Any agreed upon Modification may be executed in one or more counterparts,each of which shall
be deemed an original and all of which together shall constitute the Modification.
XIV. TERMINATION
71. Upon completing the requirements set forth in Section V of this Consent Order,including
any Modifications thereto,Respondent shall submit a final written certification of completion
documenting the actions taken and that Respondent has complied with the requirements of this Consent
Order.Respondent's final written certification of completion shall comply with the requirements set forth
above in Paragraph 56.This Consent Order shall terminate when EPA issues a written approval of
Respondent's written certification that Respondent has fully completed all work required under this
Consent Order.
XV. PUBLIC NOTICE
72. EPA's consent to this Consent Order is subject to the requirements of section
1423(c)(3)(B)of the SDWA,42 U.S.C. §300h-2(c)(3)(B),that EPA provide public notice of,and
reasonable opportunity to comment on,any proposed Consent Order.EPA will publicly notice this
Consent Order and provide the opportunity to the public to comment for thirty(30)days prior to it
becoming effective pursuant to Paragraph 73. EPA reserves the right to withdraw or seek modification to
this Consent Order in response to public comments on the proposed Order.In such case,Respondent will
have no obligations under this Consent Order unless and until a revised Consent Order is agreed upon by
the Parties and finalized by EPA. Until such time,EPA may pursue any and all enforcement options
provided by law.
XVI. EFFECTIVE DATE
73. This Consent Order shall become effective no sooner than the end of the 30-day comment
period after signature by both EPA and Respondent,in accordance with Section XV,and upon written
notice to the Respondent identifying the Effective Date of the Order.
17
IT IS SO AGREED AND ORDERED:
For the County of Hawai`i:
Z tK------
` MAY312017
i Date
Mayor,County Hawaii
25 Aupuni Street
Hilo,HI 96720
For U.S. Environmental Protection Agency,Region 9:
a-yoi_o/7
athleen H.Johnson Date
irector,Enforcement Division
U.S.Environmental Protection Agency,Region 9
75 Hawthorne Street
San Francisco,CA 94105
18
United States Environmental Protection Agency
Docket No. SDWA-UIC-AOC-2017-0002
[Proposed] Administrative Order on Consent
Proceeding under Sections 1423(c) of the Safe Drinking Water Act, 42
U.S.C. § 300h-2(c)
APPROVAL RECOMMENDED:
By: ( .
William A. Kucharski, Director
Department of Environmental Management
County of Hawaii
APPROVED AS TO FORM AND LEGALITY:
By: <------
ty Corpora ion Counsel
County of Hawai`i
tE's`" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
A REGION 9
og 75 Hawthorne Street
•A°'`? San Francisco,CA 94105-3901
IN THE MATTER OF: ) Docket No. SDWA-U[C-AOC-2017-0002
County of Hawaii, ) J REVISED ADMINISTRATIVE
ORDER ON CONSENT
Respondent. ) Proceeding under Sections 1423(c)of the
Safe Drinking Water Act.42 U.S.C. § 300h-2(c).
I. INTRODUCTION
1. The United States Environmental Protection Agency ("EPA")and the County of
Hawaii ("Respondent') voluntarily enter into this Revised Administrative Order on Consent
("Consent Order'or'AOC").
2. At the time this Consent Order was first entered. Respondent owned,controlled,
and operated seven large capacity cesspools("LCCs") located in the Pahala and Na'a[ehu
communities in Hawaii.At the time of this revision, Respondent owns.controls.and operates
five [_CCs in the Pahala and Na'alehu communities.
3. EPA alleges that Respondent has violated and continues to violate requirements
of the federal Safe Drinking Water Act("SDWA").42 U.S.C. § 300f et seq..and 40 C.F.R. §§
144.84(b)(2)and 144.88.which required owners or operators of existing large capacity cesspools
("[,CCs")to close them no later than April 5,2005.
ATTACHMENT A-2
4. This Consent Order directs Respondent to remedy the ongoing violations relating
to the continued operation of LCCs in the Pahala and Na'alehu communities of Hawaii in
accordance with the compliance schedules set forth in this Consent Order.
5. EPA and Respondent recognize that this Consent Order was negotiated in good
faith and that Respondent has fully cooperated with the EPA.
II. JURISDICTION
6. EPA enters into and issues this Consent Order under the authority vested in the
EPA Administrator by section 1423(c)of the SDWA,42 U.S.C. §300h-2(c).
7. The EPA Administrator has delegated the authority to take these actions to the
Regional Administrator for EPA, Region 9,through EPA Delegation 9-34(May 11, 1994).This
authority has been further delegated to the Director of EPA Region 9's Enforcement and
Compliance Assurance Division by Regional Delegation R9-9-34(Feb. 11,2013).
8. The Director of the Enforcement and Compliance Assurance Division of EPA
Region 9 and Respondent,together referred to as the Parties,"enter into this Consent Order
voluntarily and hereby agree to the terms of and to the issuance of this Consent Order.
Respondent agrees not to contest EPA's authority or jurisdiction to issue this Consent Order in
this or in any subsequent proceeding to enforce the terms of this Consent Order.This Consent
Order constitutes an enforceable agreement between Respondent and EPA.
9. Respondent agrees to undertake and complete all actions required by this Consent
Order. Respondent waives the opportunity to receive 30-days notice of this AOC,and to request
a hearing on or to appeal this AOC under sections 1423(c)(3)(A)and 1423(c)(6)of the SDWA,
42 U.S.C. §§300h-2(c)(3)(A)and 300h-2(c)(6).
2
III. PARTIES BOUND
10. This AOC shall bind Respondent and its officials, officers.directors.agents.
employees,attorneys,successors, and assigns,and all persons, contractors.and consultants
acting in concert with Respondent.
1 l. The undersigned signatory for Respondent certifies that he or she is authorized to
execute this Consent Order and legally bind the Respondent.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
12. Pursuant to Part C of the SDWA.42 U.S.C. § 300h through 300h-8. EPA has
promulgated regulations establishing minimum requirements for Underground Injection Control
("UIC") programs to prevent underground injection that endangers drinking water sources.These
regulations are set forth at 40 C.F.R. Part 144.
13. "Underground injection"means the subsurface emplacement of fluids by well
injection.42 U.S.C. § 300h(d)(1): 40 C.F.R. § 144.3.
14. "Well injection"means the subsurface emplacement of fluids through a well.40
C.F.R. § 144.3.
15. A"cesspool" is a"drywell." which in turn is a"well."as those terms arc defined
in 40 C.F.R. § 144.3."Large capacity cesspools" ("LCCs") include"multiple dwelling.
community or regional cesspools.or other devices that receive sanitary wastes.containing
human excreta. which have an open bottom and sometimes perforated sides."40 C.F.R.
144.81(2). LCCs do not include single family residential cesspools or non-residential cesspools
that receive solely sanitary waste and have the capacity to serve fewer than 20 persons per day.
Id.
3
16. UIC program regulations classify LCCs as Class V UIC injection wells.40 C.F.R.
§ 144.80(e).
17. Class V UIC injection wells are considered a"facility or activity"subject to
regulation under the UIC program.40 C.F.R. § 144.3.
18. '`Owner or operator"means the owner or operator of any"facility or activity"
subject to regulation under the UIC program.40 C.F.R. § 144.3.
19. The'`owner or operator"of a Class V UIC well"must comply with Federal UIC
requirements in 40 C.F.R.parts 144 through 147,"and must also"comply with any other
measures required by States or an EPA Regional Office UIC Program to protect[underground
sources of drinking water]."40 C.F.R. § 144.82.
20. Owners or operators of existing LCCs were required to have closed those LCCs
no later than April 5,2005.40 C.F.R. §§ 144.84(b)(2)and 144.88(a)(1).
21. Pursuant to Section 1422(c)of the SDWA,42 U.S.C. § 300h-1(c), and 40 C.F.R.
§ 147.601, EPA administers the UIC program in the State of Hawaii.This UIC program consists
of the program requirements of 40 C.F.R. Parts 124, 144, 146, 147(Subpart M),and 148.
22. Since at least April 30,2010, Respondent has owned and operated two cesspools
that serve the Pahala Community(i.e.,community cesspools)on Tax Map Key parcels 3-9-6-
016-041 and 3-9-6-002-024("Pahala Community Cesspools"). Respondent is an"owner or
operator"of those cesspools as that term is defined at 40 C.F.R. § 144.3.
23. Since at least April 30,2010, Respondent has owned and operated three
community cesspools located in the Na'alehu Community,two of which are located on Tax Map
Key parcels 3-9-5-024-011 and 3-9-5-024-001, respectively,and the third of which is situated
between Tax Map Key parcels 3-9-5-024-010 and 3-9-5-024-009('`Na'alehu Community
4
•
Cesspools"). Respondent is an"owner or operator'of those cesspools as that term is defined at
40 C.F.R. § 144.3.
24. From at least July 31. 1985. until June 29,2018 Respondent owned two cesspools
serving the Pahala Elderly Apartments, located on Tax Map Key parcel 3-9-6-017-038 ("Pahala
Elderly Apartments Cesspools"). Respondent is an"owner"of those cesspools as that term is
defined at 40 C.F.R. § 144.3.
25. Respondent closed the two LCCs referenced in Paragraph 24.as required by
Paragraphs 34 and 35 prior to the present revision of this AOC.
26. EPA alleges that each of the cesspools referred to in Paragraphs 22.23. and 24,at
all times relevant to this Consent Order, served multiple dwellings, and thus each is considered
an LCC pursuant to 40 C.F.R. § 144.81(2).
27. Respondent failed to close the LCCs referenced in Paragraph 24 by April 5.2005.
(
as required by 40 C.F.R. §* 144.84(6)(2)and 144.88(a)(1). In addition. Respondent has failed to
close the LCCs referenced in Paragraphs 22 and 23.
28. EPA therefore alleges that Respondent is in continuing violation of 40 C.F.R.
§§ 144.84(b)(2) and 144.88(a)(l).
29. Pursuant to section 1423(c)(1)of the SDWA,42 U.S.C. § 300h-2(c)(l). EPA may
issue an order requiring compliance against any person who violates the SDWA or any
requirement of an applicable UIC program.
V. COMPLIANCE PROVISIONS
30. Based on the foregoing findings and pursuant to EPA's authority under section
1423(c)(I)of the SDWA.42 U.S.C. § 300h-2(c)(I). in order to come into compliance with the
(
I
LCC closure requirements of the UIC program, Respondent agrees and is hereby ORDERED to
complete the following work: ,
A. Planning
31. Respondent shall conduct a review of potential projects that meet the
requirements listed in Sections B and C. Respondent shall complete the following milestones as
part of the review and planning process:
a. Feasibility Evaluation Report. Within 60 days of execution of this Consent
Order, Respondent shall evaluate the feasibility of potential projects that would meet the
requirements of Sections B and C and submit for EPA's approval a Feasibility Report identifying
the project options evaluated,the factors considered and the feasibility of each project option.A
project shall be considered feasible if Respondent has the legal authority to implement the
project and the project meets the requirements of Hawaii Administrative Rules Title 11, Chapter
62. At a minimum Respondent shall evaluate the feasibility of the following four project options
for the communities of Pahala and Na'alehu(i)package plants and new collection systems for
each community; (ii) package plants connected to the existing collection systems in each
community;(iii)a maintenance contract model individual wastewater system program for both
communities;and(iv) an operating permit model individual wastewater system program for both
communities. Respondent may evaluate additional project options.
b. Preliminary Engineering Report. Within 180 days of EPA's written
approval of the Feasibility Report, have a licensed professional engineer who has experience
with wastewater treatment, including individual wastewater systems and municipal treatment
facilities, prepare and submit for EPA's approval a Preliminary Engineering Report for Pahala.
Within 300 days of EPA's approval of the Feasibility Report, have a licensed professional
6
1
engineer who has experience with wastewater treatment. including individual wastewater
systems and municipal treatment facilities, prepare and submit a Preliminary Engineering Report
for Na'alehu for EPA's approval. The Preliminary Engineering Reports shall describe the project
details for each feasible option, including the planning area description, planning period,
description of construction phases, owner and operator of the facilities.and location of facilities
(including a map);the design parameters for each feasible option (for example, major unit
processes, flow diagrams. pipe lengths,sizes and locations,design criteria);and project costs for
each feasible option.
c. Environmental Review. Within 180 days of EPA's written approval of the
Pahala Preliminary Engineering Report submit an Environmental Information Document(E1D)
for Pahala for EPA approval. Within 365 days of EPA's approval of the Na'alehu Preliminary
Engineering Report submit for EPA's approval an EID for Na'alehu. Respondent shall have a
qualified professional conduct environmental review of the feasible options identified in the
Feasibility Evaluation Report as well as a no action alternative.The qualified professional shall
have experience conducting environmental reviews for community wastewater projects. The
environmental review shall be consistent with the requirements of the National Environmental
Policy Act(NEPA).42 U.S.C. ti 4321 et seq.,and shall be documented in the E1D. The EID shall
include,at a minimum,the following nine components: i) a description of the purpose and need
for the project; ii) identification of the preferred project and funding status; iii)description of the
affected environment, including baseline conditions that may be impacted by the proposed
project; iv) analysis comparing the feasible project options and the no action alternative; v)
assess and describe the environmental impacts and mitigation measures for each feasible project
option; vi) a description of consultation activities and coordination with state and federal
7
ti
agencies; vii)a description of public engagement in preparation of the EID; viii)a list of
preparers; and ix)a list of references.
B. Pahala Community Cesspool Closure Project
32. Respondent shall fully and properly comply with the SDWA with respect to the
Pahala Community Cesspools identified in Paragraph 22, by providing wastewater treatment that
is protective of surface water and underground sources of drinking water for 174 properties in
Pahala, including 109 properties that are currently connected to the Pahala Community
Cesspools,and closing the Pahala Community Cesspools.As soon as practicable, but no later
than the deadlines specified herein, Respondent shall complete the following milestones to
achieve compliance with the SDWA:
a. Pahala Implementation Plan. Within 30 days of receiving written approval
of the EID prepared pursuant to Paragraph 31.c,Respondent shall submit for EPA approval an
implementation plan for the selected project prepared by a licensed professional engineer
identifying the steps required to design and implement the selected project for Pahala(Pahala
Implementation Plan). Respondent must follow applicable federal, Hawaii state,and local
requirements for design,construction,and operation of such facilities and shall diligently pursue
all necessary permits and approvals.The Pahala Implementation Plan shall include steps for
obtaining all required permits and approvals. The Pahala Implementation Plan shall include a
schedule and completion dates for each step required to implement the selected alternative,
provide wastewater services for 174 properties,and to close the Pahala Community Cesspools no
later than July 21,2026.
8
b. Upon approval by EPA. Respondent shall implement the Pahala
Community Cesspool Closure Project in accordance with the provisions and schedule set forth in
the Pahala Implementation Plan.
C. Na'alehu Community Cesspool Closure Project
33. Respondent shall fully and properly comply with the SDWA with respect to the
Na'alehu Community Cesspools identified in Paragraph 22. by providing wastewater treatment
that is protective of surface water and underground sources of drinking water for 194 properties
in Na'alehu. including 164 properties that are currently connected to the Na'alehu Community
Cesspools, and closing the Na'alehu Community Cesspools.As soon as practicable. but no later
than the deadlines specified herein. Respondent shall complete the following milestones to
achieve compliance with the SDWA:
a. Na'alehu Implementation Plan. Within 60 days of receiving written
approval of the EID prepared pursuant to Paragraph 31.c, Respondent shall submit for EPA
approval an implementation plan for the selected project prepared by a licensed professional
engineer identifying the steps required to design and implement the selected project for Na'alehu
(Na'alehu Implementation Plan). Respondent must follow applicable federal, Hawaii state.and
local requirements for design. construction,and operation of such facilities and shall diligently
pursue all necessary permits and approvals. The Na'alehu Implementation Plan shall include
steps for obtaining all required permits and approvals.The Na'alehu Implementation Plan shall
include a schedule and completion dates for each step required to implement the selected
alternative, provide wastewater services for 194 properties.and to close the Na'alehu
Community Cesspools no later than December 31,2027.
9
b. Upon approval by EPA, Respondent shall implement the Na'alehu
Community Cesspool Closure Project in accordance with the provisions and schedule set forth in
the Na'alehu Implementation Plan.
D. Pahala Elderly Apartments Cesspool Replacement Project
34. Respondent shall take appropriate measures to fully and properly comply with the SDWA
with respect to the Pahala Elderly Apartments Community Cesspools described in Paragraph 24,
including replacing the Pahala Elderly Apartments Cesspools with one or more individual
wastewater systems("IWSs'')that comply with DOH requirements as soon as practicable, but by
no later than September 28,2018.Also by that date, Respondent shall properly close(i.e.,
"'abandon"as that term is defined by DOH)the Pahala Elderly Apartment Cesspools in
accordance with Paragraph 45 of this Consent Order.
35. Respondent has developed the Pahala Elderly Apartments Compliance Plan,
included as Attachment C. Respondent shall implement the Pahala Elderly Apartments
Compliance Plan in accordance with the deadlines specified in this Consent Order.
E. Outreach
36. Webpage. Starting within 30 days from execution of this Consent Order,
Respondent must maintain a public webpage to keep EPA and the public informed of the status
of the Community Cesspool Closure Projects.The webpage must be updated at least monthly
and must at a minimum identify all milestones completed since the last update, post Semiannual
Reports,and provide a schedule of upcoming meetings and opportunities for public engagement.
Respondent shall submit the webpage address to EPA when the webpage becomes public and
shall include the status of webpage updates in the Semiannual Reports and Quarterly Meetings
with EPA.
10
1
37. Respondent shall maintain a list of persons interested in the Pahala and Na'alehu
Community Cesspool Closure Projects. The list shall include persons who have provided their
contact information at a public meeting regarding the Pahala and Na'alehu Community Cesspool
Closure Projects, persons who have previously contacted Respondent regarding the Projects,and
persons who request that Respondent include them on the list.
38. Respondent shall provide notice of all public meetings and opportunities for
public engagement at least 14 days in advance by sending the notice to all persons identified on
the list in Paragraph 37, posting the notice on the homepage of the webpage required by
Paragraph 36, publishing the notice in local newspapers, and posting the notice at the Pahala and
Na'alehu Community Centers located at 96-1149 Kamani Street Pahala. Hi 96777 and 95-5635
Mamalahoa Highway Na'alehu. Hi 96772 respectively,and at the facility where the meeting will
be held, if possible, if the public meeting is not held at one of the Community Centers.
`
39. Public meetings shall be designed to foster an atmosphere that encourages
participation by being held in locations accessible to all community members that wish to attend
and that allow for maximum attendance by community members.and by occurring at times
selected to reasonably accommodate the schedules of community members that wish to attend.
40. Within 45 days of execution of this Consent Order. Respondent shall hold a
public meeting to explain the requirements of this Order. including the requirements for planning
and public participation.At the meeting Respondent shall present the four potential projects
identified in Paragraph 31.a and shall provide opportunity for members of the public to ask
questions and provide comment.
41. Within 30 days of EPA approval of each EID. Respondent shall commence
solicitation of public comment on the project options and environmental review information
11
contained in that EID. For each project Respondent shall allow at least 30 days for the public to
submit written comments and shall hold at least one public meeting within the community where
the project will take place. Notice of the opportunity to submit written comments and/or public
testimony shall be provided as specified in Paragraph 38 and shall include instructions for
submitting comments. Respondent shall submit a summary response document showing that
Respondent has responded to all substantive comments submitted by the public.The document
shall also be posted on the webpage required by Paragraph 36.
42. Semiannual Outreach Meetings. Starting no later than August 2022 Respondent
shall hold public outreach meetings at least twice per year,once in February and once in August
to update the public on the status of the cesspool closure projects required by this Consent Order.
At these meetings Respondent shall present the contents of the Semiannual Reports to the
communities of Pahala and Na'alehu.
F. General Requirements
43. Respondent shall inform the EPA in writing if any new information or
circumstances cause Respondent to modify any planned actions or schedule for achieving
compliance with this Consent Order. Respondent may,where appropriate, petition for an
extension of any deadline contained in Paragraph 32(a)through (i), Paragraph 33(a)through(j),
or Paragraph 34.Any such request should be made according to the procedures set forth in
Subsection H of this Consent Order. Extensions of any particular deadline shall only become
effective upon approval by EPA and shall not affect any other deadlines under this Consent
Order not specifically addressed in the approved extension.
44. Construction of the selected projects shall be considered complete once the
Hawai`i Department of Health("HDOH") issues necessary approvals to operate.
12
45. In complying with Paragraphs 32(h),33(i). and 34 of this Consent Order
(cesspool closures), Respondent must follow HDOH's well abandonment procedures and
techniques and any other requirements of HDOH's UIC program. Respondent shall notify
HDOH when closure of each LCC is complete. EPA will consider the LCCs to be closed when
either(a) I IDOII issues an Injection Well Cesspool Backfilling Final Completion Report.or(b)
Respondent submits to EPA a completed Large Capacity Cesspool Backfilling Final Completion
Report.
46. Respondent shall submit to EPA copies of HDOH's"Injection Well Cesspool
Backfilling Final Completion Report" for each cesspool referenced in this AOC within ten (10)
days of receipt from HDOH. Documents should be sent to the EPA Region 9 Compliance
Officer, and the EPA Region 9 LCC Project Coordinator at the addresses specified in Paragraphs
68 and 69 of this Consent Order.
47. Subject to delays associated with fierce mcjeure as described in Subsection H.
Respondent shall fully implement each requirement of this Consent Order. including meeting the
deadlines contained in Paragraph 32(a)through (h). Paragraph 33(a)through (k).and Paragraph
34. Respondent's failure to fully implement all requirements of this Consent Order in the manner
and timeframe required shall be deemed a violation of this Consent Order.
48. Respondent's failure to comply with all of the applicable requirements of the
SDWA and 40 C.F.R. Part 144 may subject Respondent to additional enforcement actions.
including but not limited to judicial or administrative actions.
49. Where work under this AOC is being performed using federal grant funds directly
administered by EPA. including funds provided under Special Appropriation Grant XP-
k.
13
96942401, Respondent shall ensure that the project schedule under such grant is consistent with
the requirements and schedules included in this Consent Order.
G. Stipulated Penalties
50. If Respondent fails to comply with any provision of this Consent Order,
Respondent agrees to pay upon EPA's demand the stipulated penalties set forth in this Paragraph
unless EPA has excused Respondent's delay according to the procedures provided in Subsection
H of this Consent Order.Stipulated penalties shall begin to accrue on the date performance is
due, and are calculated as follows:
a. '$300 per day per violation for the first through the thirtieth day of
noncompliance;
b. $500 per day per violation for the thirty-first through the sixtieth day of
noncompliance;
c. $1000 per day per violation for the sixty-first day of violation and beyond.
51. Respondent must pay the stipulated penalty within thirty(30)days of receipt of
EPA's stipulated penalty demand,according to the process provided in the demand. If any
payment is not received within thirty(30)calendar days of being due, interest,handling charges,
and late payment penalties will begin to accrue in the same manner as set forth at 31 U.S.C. §
3717 and 40 C.F.R. § 13.11.
52. Neither the demand for,nor payment of,a stipulated penalty relieves Respondent
of the obligation to comply with any requirement or deadline of this Consent Order.
53. EPA may, in the unreviewable exercise of its discretion,elect to pursue any other
administrative or judicial remedies in lieu of assessing some or all of the stipulated penalties due
under this Consent Order.
14
54. EPA may. in the unreviewable exercise of its discretion, reduce or waive
stipulated penalties due under this Consent Order.
55. Respondent may pay the stipulated penalty by check(mail or overnight delivery).
wire transfer, Automated Clearing House (ACH).or online payment. Payment instructions are
available at. Payments made by a cashier's check or certified check must be payable to the order
of"Treasurer. United States of America." and delivered to the following address:
U.S. Environmental Protection Agency
Fines and Penalties
Cincinnati Finance Center
P.O. Box 979077
St. Louis.Missouri 63197-9000
• 56. Respondent shall provide notice of stipulated penalty payments made pursuant to
Paragraph 55, accompanied by the title and docket number of this action. to the EPA Region 9
Compliance Officer at the address provided in Paragraph 68 below.
H. Delays
57. "Force majeure.- for purposes of this Consent Order. is defined as any event
arising from causes beyond Respondent's control.the control of any entity controlled by
Respondent, or the control of Respondent's contractors,which delays or prevents the
performance of any obligation under this Consent Order,despite Respondent's reasonable best
efforts to fulfill the obligation. The requirement that Respondent exercise"reasonable best
efforts to fulfill the obligation" includes using reasonable best efforts to anticipate any potential
_force majeure event and reasonable best efforts to address the effects of any such event as it is
occurring and/or after it has occurred,to prevent or minimize any resulting delay to the greatest
extent possible. Examples of events that are not force majeure include, but are not limited to.
increased costs or expenses of any work to be performed under this Consent Order. failure to
f
I5
diligently pursue funding source(s)for work to be performed under this Consent Order including
federal and state funding sources,or normal inclement weather.
58. Respondent shall notify EPA in writing,within 10 business days,of any event
that occurs that causes or is likely to cause delay in compliance with any deadline specified in
this Consent Order. The notification should explain whether the delay was caused by force
majeure,as defined in Paragraph 57,should describe the measures Respondent has taken and/or
will take to prevent or minimize the delay,and should specify the timetable by which
Respondent intends to implement these measures to ensure compliance with the applicable
requirement or deadline. Respondent shall adopt all reasonable measures to avoid or minimize
delay. Submittal of the notice to EPA required by this Paragraph does not, by itself,extend any
deadline or timeframe in this Consent Order.
59. If,upon receiving notice required under Paragraph 58, EPA agrees that the delay
or anticipated delay in compliance with this Consent Order has been or will be caused by
circumstances that constitute force majeure as defined in Paragraph 57,and upon request by
Respondent, EPA may extend the applicable compliance deadline. Modification of any particular
deadline shall not affect any other deadlines under this Consent Order unless expressly
authorized in writing by EPA.
60. Respondent has a burden of demonstrating, by a preponderance of the evidence,
that the actual or anticipated delay has been or will be caused by force majeure,that the duration
of the delay was,or will be warranted under the circumstances,that Respondent exercised or is
using its best efforts to avoid and mitigate the effects of the delay,and that Respondent complied
with the requirements of this subsection.
16
i
61. In the event that EPA does not agree that a delay in achieving compliance with
the requirements of this Consent Order has been or will be caused by•force majeure, EPA will
notify Respondent in writing of EPA's decision and any delays will not be excused. EPA may
demand stipulated penalties for unexcused delay.as set forth in Subsection G.
VI. REPORTING REQUIREMENTS
62. Semiannual Reports. Respondent shall submit compliance reports to the EPA
Region 9 Compliance Officer and the EPA Region 9 LCC Project Coordinator twice per year.
with the first report(covering the period January I. 2017 through June 30. 2017)due on July 3.
2017,and the second report due on January I.2018. Subsequent reports shall be due on the first
business day following each six-month period thereafter. Each compliance report shall discuss
Respondent's progress toward meeting the milestones specified in Section V.A-V.E of this AOC.
Upon notification to Respondent. EPA may require additional status reports, or fewer status
reports. and/or request additional documentation to support the compliance reports for purpose of
documenting compliance with this AOC. Respondent shall continue to submit semiannual
compliance reports until this AOC has been terminated pursuant to the terms of Section XIV
('Termination)of this Consent Order.
63. Each compliance report must be accompanied by a certification from
Respondent's authorized representative that Respondent has met each milestone identified in this
AOC that falls within the preceding two quarters.or. if a milestone was missed, the compliance
report must describe why that milestone was missed and the date certain by which it will he met.
64. Quarterly Meetings with EPA. Respondent must convene quarterly meetings (by
teleconference or at a centralized meeting location) with EPA to discuss Respondent's progress
in complying with the requirements and schedules of this Consent Order. Respondent shall be
17
responsible for scheduling meetings required under this Paragraph to occur no later than twenty
(20)days after the last day of every calendar quarter(i.e.,by April 20th for the period January
through March, by July 20th for the period April through June, by October 20th for the period
July through September,and by January 20th for the period October through December).
Respondent shall provide the EPA Compliance Officer and the EPA LCC Project Coordinator
with notice of the proposed meeting date at the addresses listed in Paragraphs 68 and 69 of this
Consent Order at least fifteen (15)days in advance of the proposed meeting.The first quarterly
meeting shall take place no later than July 20,2017.
VII. SUBMISSIONS AND NOTIFICATIONS
65. All information and documents submitted pursuant to this Consent Order shall be
signed by a duly authorized representative of the County of Hawaii.
66. The person signing Respondent's submissions under this Consent Order shall
make the following certification:
I certifi, under penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure that
qualified personnel properly gather and evaluate information submitted. Based on my
inquiry of the person or persons who manage the system, or those persons directly
responsible for gathering the information,I certify that the information submitted is, to
the best of my knowledge and belief true, accurate, and complete. I am aware that
there are significant penalties for submittingfalse information, including the possibility
of fine and imprisonment for knowing violations.
67. Submissions by Respondent shall be deemed made on the date they are sent
electronically,or on the date postmarked if sent by U.S.mail. Electronic submissions are
preferred.
68. All submissions made pursuant to this Consent Order shall be sent to the EPA
Region 9 Compliance Officer at the following address:
Mr.Jelani Shareem
18
U.S. EPA Region 9
Enforcement and Compliance Assurance Division
Drinking Water Section(ECAD 3-3)
75 Hawthorne Street
San Francisco, CA 94105
shareem.jelani'a epa.2o%
69. Where the Consent Order so specifies. submissions shall also be sent to the EPA
Region 9 LCC Project Coordinator,at the following address:
Ms. Kate Rao
U.S. EPA Region 9
Water Division
Groundwater Protection Section (WTR 4-2)
75 Hawthorne Street
San Francisco, CA 94105
rao.kate u;epa.ao‘
70. Approval of Deliverables. After review of any plan. report. or other item that is
required to be submitted under this Consent Decree, EPA will in writing: (a)approve the
submission; (b)approve the submission upon specified conditions;(c) approve part of the
submission and disapprove the remainder: or(d) disapprove the submission.
71. If the submission is approved under Paragraph 70(a), Respondent shall take all
actions required by the plan, report. or other document. in accordance with the schedules and
requirements of the plan, report. or other document,as approved. If the submission is
conditionally approved or approved only in part under Paragraph 70(b)or(c), Respondent shall,
upon written direction from EPA,take all actions required by the approved plan, report. or other
item that EPA determines are technically severable from any disapproved portions.
72. If the submission is disapproved in whole or in part under to Paragraph 70(c)or
(d). Respondent shall,within thirty (30)days or such other time as the Parties agree to in writing.
correct all deficiencies and resubmit the plan. report,or other item,or disapproved portion
{
19
thereof, for approval, in accordance with the preceding Paragraphs. If the resubmission is
approved in whole or in part, Respondent shall proceed in accordance with the preceding
Paragraph.
73. If a resubmitted plan, report,or other item,or portion thereof, is disapproved in
whole or in part, EPA may again require Respondent to correct any deficiencies, in accordance
with the preceding Paragraphs, subject to the right of EPA to seek stipulated penalties as
provided in Section G.
VIII. RECORD PRESERVATION
74. Until five(5)years after termination of this Consent Order,the Respondent shall
preserve and retain all records and documents now in its possession or control,or which come
into its possession or control,that relate in any manner to the performance of the tasks in this
• Consent Order. Until five years after termination of this Consent Order,the Respondent shall
also instruct its agents to preserve all documents, records,and information of whatever kind,
nature or description relating to the performance of the tasks in this Consent Order.
IX. SCOPE OF CONSENT ORDER
75. This Consent Order is not and shall not be construed to be a permit under the
SDWA, nor shall it in any way relieve or affect Respondent's obligations under the SDWA,or
any other applicable federal or State laws, regulations,or permits. Compliance with this Consent
Order shall not be a defense to any actions commenced pursuant to such applicable laws,
regulations,or permits, nor does it constitute a release. V
76. Issuance of this Consent Order is not an election by EPA to forego any remedies
available to it under the law, including without limit any administrative,civil or criminal action
to seek penalties,fines, or other appropriate relief under the SDWA. EPA reserves all available
20
legal and equitable rights and remedies to enforce any violation cited in this Consent Order.and
the right to seek recovery of any costs and attorney fees incurred by EPA in any actions against
Respondent for non-compliance with this Consent Order.
77. This Consent Order shall in no way affect the rights of EPA or the United States
against any person not a party hereto.
X. WAIVER
78. Respondent waives any and all remedies,claims for relief and otherwise available
rights or remedies to judicial or administrative review which Respondent may have with respect
to any issue of fact or law set forth in this Consent Order. including, but not limited to, any right
of judicial review of the Consent Order under the Administrative Procedure Act.5 U.S.C. §§
701-708.
{ XI. INTEGRATION
79. Schedules,documents, plans, etc. that are developed pursuant to this Consent
Order become incorporated into this Consent Order upon written approval by EPA.
80. Any schedule for resubmission of deliverables established in accordance with
Paragraph 72 shall become incorporated into this Consent Order.
81. This Consent Order. and any documents that become incorporated into this
Consent Order pursuant to Paragraphs 79 and 80, constitute the final, complete and exclusive
agreement and understanding among the Parties with respect to the settlement embodied in this
Consent Order. The Parties acknowledge that there are no representations, agreements or
understanding relating to the settlement other than those expressly contained in this Consent
Order.
21
XII. SEVERABILITY
82. The provisions of this Consent Order shall be severable. If any provision is
declared by a court of competent jurisdiction to be unenforceable,then the remaining provisions
shall remain in full force and effect.
XIII. MODIFICATIONS OF CONSENT ORDER
83. Modification of this Consent Order including any plans or schedules developed
pursuant thereto shall be in writing and shall take effect only when agreed to in writing by both
Parties.Any agreed upon Modification may be executed in one or more counterparts,each of
which shall be deemed an original and all of which together shall constitute the Modification.
XIV. TERMINATION
84. Upon completing the requirements set forth in Section V of this Consent Order,
including any Modifications thereto, Respondent shall submit a final written certification of
completion documenting the actions taken and that Respondent has complied with the
requirements of this Consent Order. Respondent's final written certification of completion shall
comply with the requirements set forth above in Paragraph 63. This Consent Order shall
terminate when EPA issues a written approval of Respondent's written certification that
Respondent has fully completed all work required under this Consent Order.
XV. PUBLIC NOTICE
85. EPA's consent to this Consent Order is subject to the requirements of section
1423(c)(3)(B)of the SDWA,42 U.S.C. §300h-2(c)(3)(B),that EPA provide public notice of,
and reasonable opportunity to comment on,any proposed Consent Order. EPA will publicly
notice this Consent Order and provide the opportunity to the public to comment for thirty(30)
days prior to it becoming effective pursuant to Paragraph 86. EPA reserves the right to withdraw
22
or seek modification to this Consent Order in response to public comments on the proposed
Order. In such case, Respondent will have no obligations under this Consent Order unless and
until a revised Consent Order is agreed upon by the Parties and finalized by EPA. Until such
time. EPA may pursue any and all enforcement options provided by law.
XVI. EFFECTIVE DATE
86. This Consent Order shall become effective no sooner than the end of the 30-day
comment period after signature by both EPA and Respondent. in accordance with Section XV.
and upon written notice to the Respondent identifying the Effective Date of the Order.
87. Revisions to this Consent Order shall become effective immediately upon
signature by the Parties.
t
23
IT IS SO AGREED AND ORDERED:
For the County of Hawaii:
Mayor Harry Kim"/s/" May 31,2017
Mayor Harry Kim Date
Mayor,County of Hawai'i
25 Aupuni Street .
Hilo. HI 96720
For U.S. Environmental Protection Agency, Region 9:
Claire Trombadore"Is!"for June 22.2017
Kathleen H.Johnson Date
Director, Enforcement Division
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco,CA 94105
24
REVISION IS SO AGREED AND APPROVED:
For the County of Hawaii:
C21 (VI
cork_ Mayor Mitchell D. Roth Date
Mayor, County of Hawaii
25 Aupuni Street
Hilo. HI 96720
Approved as to Form and Legality:
Deputy Corporation Counsel Date
County of Hawaii
For U.S. Environmental Protection Agency. Region 9:
Amy Miller Dater
. Director, Enforcement Division
U.S. Environmental Protection Agency. Region 9
75 Hawthorne Street
San Francisco,CA 94105
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REGION 9
SAN FRANCISCO, CA 94105
May 13, 2026
•
Sent Via Electronic Mail
Kimo Alameda, Ph.D., Mayor
Office of the Mayor
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Kimo.Alameda@hawaiicounty.gov
Re: Amended Administrative Order on Consent
EPA Docket No.SDWA-UIC-AOC-09-2017-0002
Pahala and Na'alehu Large-Capacity Cesspool Closure Projects
Approval to Extend the Pahala and Na'alehu Large-Capacity Cesspool Closure Dates
Dear Mayor Alameda:
On April 8, 2026,the County of Hawaii(the County)submitted a letter to the U.S. Environmental
Protection Agency(EPA) Region 9 requesting approval to extend the large-capacity cesspool closure
deadlines established in Paragraphs 33 and 34 of the Federal Administrative Order on Consent
(Consent Order) between EPA and the County for the Pahala and Na'alehu Large-Capacity Cesspool
Closure Projects. Specifically,the County requests to extend the Pahala closure deadline from January
22, 2027, to January 31, 2029, and the N5`alehu closure deadline from December 31, 2027,to
December 31, 2032.
Basis for Pahala Extension
The County explained that although it has made significant progress toward completing the Pahala
collection system by November 30, 2026, final closure of the Pahala large-capacity cesspools depends
on the new Pahala wastewater treatment plant(WWTP), which is scheduled for completion on
September 30, 2028.To minimize construction delays for the Pahala WWTP,the County awarded the
construction contract in January 2026 and issued the Notice to Proceed on March 16, 2026.
Basis for Na'alehu Extension
For Na'alehu,the County stated that it requires a five-year extension to close the large-capacity
cesspools because of land-acquisition challenges and the anticipated construction durations for the
ATTACHMENT A-3
new Na'alehu wastewater treatment plant(WWTP), collection system,and sewer pump station (SPS).
The County reported that, although it held a productive meeting with a representative of the current
owner of the preferred parcel for the WWTP site, it is still determining whether it will be able to
acquire the property through a voluntary sale agreement or through a lengthy eminent-domain
process. After the County acquires the site, additional time will also be needed to complete a formal
subdivision of the property,which requires approval from the Board of Land and Natural Resources.
The County also noted that construction of the new Na'alehu WWTP, collection system, and SPS will be
completed in phases to accommodate dependencies among project components,with anticipated
durations of 37 months for the WWTP,24 months for the collection system, and 24 months for the
SPS.
EPA Determination
After considering the circumstances that contributed to the delays and the remaining actions required
to complete construction of the new Pahala and Na'alehu WWTPs and collection systems, EPA is willing
to amend the Consent Order to extend the compliance deadlines for closure of the community
cesspools to January 31,2029,for Pahala, and December 31,2032,for Na'alehu.A copy of the
amended Consent Order reflecting these adjusted closure dates is attached for your signature. Please
note that the amended Consent Order will not become effective until after it has been signed by both
the County and EPA and posted for a 30-day public comment period,as required by Section
1423(c)(3)(B) of the Safe Drinking Water Act,42 U.S.C. §300h-2(c)(3)(B).
If you have any questions about this letter, please feel free to have your staff contact Jelani Shareem at
(415) 972-3095 or via email at shareem.ielani@epa.gov. Legal questions should be directed to Kimberly
Wells in EPA's Office of Regional Counsel at(415) 972-3056 or wells.kimberly@epa.gov.
Sincerely,
AM 1 MILLER- MILLERYBOWENd byAMY
BOWEN, -0�UU 026.05.1312:33:34
Amy C. Miller-Bowen, Director
Enforcement and Compliance Assurance Division
cc: William V. Brilhante,J. D., Managing Director(William.Brilhante@hawaiicountv.gov)
Merrick Nishimoto, Deputy Managing Director(Merrick.Nishimoto@hawaiicountv.gov)
Renee N.C.Schoen, Corporation Counsel (Renee.Schoen@hawaiicountv.gov)
Diana Mellon-Lacey, Deputy Corporation Counsel (Diana.Mellon-Lacey@hawaiicounty.gov)
Diane Nakagawa, Director of Finance, (Diane.Nakagawa@hawaiicountv.gov)
Daniel Girvan, P.E., Director, DEM (Daniel.Girvan@hawaiicounty.gov)
Craig Kawaguchi, Deputy Director, DEM (Craig.Kawaguchi@hawaiicountv.gov)
Chris Laude, P.E.,Acting Wastewater Division Chief(Christopher.Laude@hawaiicounty.gov)
Mark J. Grant, Project Coordinator(MarkJ.Grant@hawaiicounty.gov)
2
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REGION 9
SAN FRANCISCO, CA 94105
IN THE MATTER OF: ) Docket No.SDWA-UIC-AOC-2017-0002
County of Hawaii, ) PROPOSED AMENDED ADMINISTRATIVE
ORDER ON CONSENT
Respondent. ) Proceeding under Sections 1423(c)of the
Safe Drinking Water Act,42 U.S.C. §300h-2(c).
)
I. INTRODUCTION
1. The United States Environmental Protection Agency("EPA") and the County of
Hawaii ("Respondent")voluntarily enter into this Amended Administrative Order on Consent
("Consent Order"or"AOC").
2. Upon the Effective Date of this Consent Order, as defined in section XVI below,
this Consent Order supersedes the Revised Administrative Order on Consent for County of
Hawai`i Pahala and Na`alehu LCC Closure Projects which was effective August 22, 2022 and
which revised the Administrative Order on Consent in the Matter of County of Hawai'i issued
June 22,2017("2017 AOC").
3. At the time the 2017 AOC was entered, Respondent owned, controlled,and
operated seven large-capacity cesspools("LCCs") located in the Pahala and Na`alehu
1
ATTACHMENT A-4
communities in Hawaii.At the time of this revision, Respondent continues to own, control,and
operate five LCCs in the Pahala and Na'alehu communities.
4. EPA alleges that Respondent has violated and continues to violate requirements
of the federal Safe Drinking Water Act("SDWA"), 42 U.S.C. §300f et seq., and 40 C.F.R. §§
144.84(b)(2)and 144.88, which required owners or operators of existing LCCs to close them no
later than April 5, 2005.
5. This Consent Order directs Respondent to remedy the ongoing violations relating
to the continued operation of LCCs in the Pahala and Na'alehu communities of Hawaii in
accordance with the compliance schedules set forth in this Consent Order.
6. EPA and Respondent recognize that this Consent Order was negotiated in good
faith and that Respondent has fully cooperated with the EPA.
II. JURISDICTION
7. EPA enters into and issues this Consent Order under the authority vested in the
EPA Administrator by section 1423(c)of the SDWA,42 U.S.C. §300h-2(c).
8. The EPA Administrator has delegated the authority to take these actions to the
Regional Administrator for EPA, Region 9,through EPA Delegation 9-34(May 11, 1994).This
authority has been further delegated to the Director of EPA Region 9's Enforcement and
Compliance Assurance Division by Regional Delegation R9-9-34(Feb. 11, 2013).
9. The Director of the Enforcement and Compliance Assurance Division of EPA
Region 9 and Respondent,together referred to as"the Parties,"enter into this Consent Order
.,-
voluntarily and hereby agree to the terms of and to the issuance of this Consent Order.
Respondent agrees not to contest EPA's authority or jurisdiction to issue this Consent Order in
2
this or in any subsequent proceeding to enforce the terms of this Consent Order.This Consent
Order constitutes an enforceable agreement between Respondent and EPA.
10. Respondent agrees to undertake and complete all actions required by this
Consent Order. Respondent waives the opportunity to receive 30-days notice of this AOC,and
to request a hearing on or to appeal this AOC under sections 1423(c)(3)(A)and 1423(c)(6)of the
SDWA, 42 U.S.C. §§300h-2(c)(3)(A)and 300h-2(c)(6).
III. PARTIES BOUND
11. This AOC shall bind Respondent and its officials,officers, directors, agents,
employees,attorneys, successors,and assigns, and all persons,contractors,and consultants
acting in concert with Respondent.
12. The undersigned signatory for Respondent certifies that he or she is authorized
to execute this Consent Order and legally bind the Respondent.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
13. Pursuant to Part C of the SDWA,42 U.S.C. §300h through 300h-8, EPA has
promulgated regulations establishing minimum requirements for Underground Injection
Control ("UIC") programs to prevent underground injection that endangers drinking water
sources.These regulations are set forth at 40 C.F.R. Part 144.
14. "Underground injection" means the subsurface emplacement of fluids by well
injection.42 U.S.C. §300h(d)(1); 40 C.F.R. § 144.3.
15. "Well injection" means the subsurface emplacement of fluids through a well.40
C.F.R. § 144.3.
3
16. A"cesspool" is a "drywell,"which in turn is a "well,"as those terms are defined
in 40 C.F.R. § 144.3. "Large-capacity cesspools" ("LCCs") include "multiple dwelling, community
or regional cesspools, or other devices that receive sanitary wastes, containing human excreta,
which have an open bottom and sometimes perforated sides."40 C.F.R. § 144.81(2). LCCs do
not include single family residential cesspools or non-residential cesspools that receive solely
sanitary waste and have the capacity to serve fewer than 20 persons per day.Id.
17. UIC program regulations classify LCCs as Class V UIC injection wells.40 C.F.R.
§ 144.80(e).
18. Class V UIC injection wells are considered a "facility or activity"subject to
regulation under the UIC program. 40 C.F.R. § 144.3.
19. "Owner or operator" means the owner or operator of any"facility or activity"
subject to regulation under the UIC program. 40 C.F.R. §144.3.
20. The "owner or operator" of a Class V UIC well "must comply with Federal UIC
requirements in 40 C.F.R. parts 144 through 147," and must also"comply with any other
measures required by States or an EPA Regional Office UIC Program to protect [underground
sources of drinking water)."40 C.F.R. § 144.82.
21. Owners or operators of existing LCCs were required to have closed those LCCs no
later than April 5, 2005.40 C.F.R. §§ 144.84(b)(2)and 144.88(a)(1).
22. Pursuant to Section 1422(c) of the SDWA, 42 U.S.C.§300h-1(c), and 40 C.F.R.
§ 147.601, EPA administers the UIC program in the State of Hawai'i.This UIC program consists of
the program requirements of 40 C.F.R. Parts 124, 144, 146, 147(Subpart M), and 148.
4
23. Since at least April 30, 2010, Respondent has owned and operated two cesspools
that serve the Pahala Community(i.e., community cesspools) on Tax Map Key parcels 3-9-6-
016-041 and 3-9-6-002-024("Pahala Community Cesspools"). Respondent is an "owner or
operator" of those cesspools as that term is defined at 40 C.F.R. § 144.3.
24. Since at least April 30, 2010, Respondent has owned and operated three
community cesspools located in the Na'alehu Community,two of which are located on Tax Map
Key parcels 3-9-5-024-011 and 3-9-5-024-001, respectively, and the third of which is situated
between Tax Map Key parcels 3-9-5-024-010 and 3-9-5-024-009 ("Na'alehu Community
Cesspools").. Respondent is an"owner or operator"of those cesspools as that term is defined at
40 C.F.R. § 144.3.
25. From at least July 31, 1985, until June 29, 2018 Respondent owned two
cesspools serving the Pahala Elderly Apartments, located on Tax Map Key parcel 3-9-6-017-038
("Pahala Elderly Apartments Cesspools"). Respondent was an "owner"of those cesspools as
that term is defined at 40 C.F.R. § 144.3.
26. Respondent closed the two LCCs referenced in Paragraph 25,as required by the
2017 AOC.
27. EPA alleges that each of the cesspools referred to in Paragraphs 23, 24, and 25,
at all times relevant to this Consent Order,served multiple dwellings,and thus each is
considered an LCC pursuant to 40 C.F.R. § 144.81(2).
28. Respondent failed to close the LCCs referenced in Paragraph 25 by April 5, 2005,
as required by 40 C.F.R. §§ 144.84(b)(2) and 144.88(a)(1). In addition, Respondent has failed to
close the LCCs referenced in Paragraphs 23 and 24.
5
29. EPA therefore alleges that Respondent is in continuing violation of 40 C.F.R.
§§ 144.84(b)(2) and 144.88(a)(1).
30. Pursuant to section 1423(c)(1)of the SDWA,42 U.S.C. § 300h-2(c)(1), EPA may
issue an order requiring compliance against any person who violates the SDWA or any
requirement of an applicable UIC program.
V. COMPLIANCE PROVISIONS
31. Based on the foregoing findings and pursuant to EPA's authority under section
1423(c)(1) of the SDWA, 42 U.S.C. §300h-2(c)(1), in order to come into compliance with the LCC
closure requirements of the UIC program, Respondent agrees and is hereby ORDERED to
complete the following work:
A. Planning
32. Respondent shall conduct a review of potential projects that meet the
requirements listed in Sections V.B and V.C. Respondent shall complete the following
milestones as part of the review and planning process:
a. Feasibility Evaluation Report.Within 60 days of execution of this Consent
Order, Respondent shall evaluate the feasibility of potential projects that would meet the
requirements of Sections V.B and V.0 and submit for EPA's approval a Feasibility Report
identifying the project options evaluated,the factors considered and the feasibility of each
project option. A project shall be considered feasible if Respondent has the legal authority to
implement the project and the project meets the requirements of Hawai'i Administrative Rules
Title 11, Chapter 62. At a minimum Respondent shall evaluate the feasibility of the following
four project options for the communities of Pahala and Na'alehu (i) package plants and new
6
collection systems for each community; (ii) package plants connected to the existing collection
systems in each community; (iii) a maintenance contract model individual wastewater system
program for both communities;and (iv)an operating permit model individual wastewater
system program for both communities. Respondent may evaluate additional project options.
b. Preliminary Engineering Report. Within 180 days of EPA's written
approval of the Feasibility Report, have a licensed professional engineer who has experience
with wastewater treatment, including individual wastewater systems and municipal treatment
facilities, prepare and submit for EPA's approval a Preliminary Engineering Report for Pahala.
Within 300 days of EPA's approval of the Feasibility Report, have a licensed professional
engineer who has experience with wastewater treatment, including individual wastewater
systems and municipal treatment facilities, prepare and submit a Preliminary Engineering
Report for Na'alehu for EPA's approval.The Preliminary Engineering Reports shall describe the
project details for each feasible option, including the planning area description, planning
period,description of construction phases, owner and operator of the facilities, and location of
facilities(including a map);the design parameters for each feasible option (for example, major
unit processes,flow diagrams, pipe lengths,sizes and locations, design criteria);and project
costs for each feasible option.
c. Environmental Review. By July 30, 2024,submit for EPA's approval an
Environmental Information Document("EID")for Pahala. Within 365 days of EPA's approval of
the Na'alehu Preliminary Engineering Report submit for EPA's approval an EID for Na'alehu.
Respondent shall have a qualified professional conduct environmental review of the feasible
options identified in the Feasibility Evaluation Report as well as a no action alternative.The
7
qualified professional shall have experience conducting environmental reviews for community
wastewater projects.The environmental review shall be consistent with the requirements of
the National Environmental Policy Act("NEPA"), 42 U.S.C. §4321 et seq., and shall be
documented in the EID.The EID shall include, at a minimum, the following nine components: i)
a description of the purpose and need for the project; ii)identification of the preferred project
and funding status; iii) description of the affected environment, including baseline conditions
that may be impacted by the proposed project; iv) analysis comparing the feasible project
options and the no action alternative;v) assess and describe the environmental impacts and
mitigation measures for each feasible project option;vi) a description of consultation activities
and coordination with state and federal agencies;vii) a description of public engagement in
preparation of the EID; viii) a list of preparers;and ix)a list of references.
B. Pahala Community Cesspool Closure Project
33. Respondent shall fully and properly comply with the SDWA with respect to the
Pahala Community Cesspools identified in Paragraph 23, by providing wastewater treatment
that is protective of surface water and underground sources of drinking water for 174
properties in Pahala, including 109 properties that are currently connected to the Pahala
Community Cesspools,and closing the Pahala Community Cesspools. As soon as practicable,
but no later than the deadlines specified herein, Respondent shall complete the following
milestones to achieve compliance with the SDWA:
a. Pahala Implementation Plan.Within 60 days of the effective date of the
Amended AOC, Respondent shall submit for EPA approval a revised implementation plan for
the selected project prepared by a licensed professional engineer identifying the steps required
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to design and implement the selected project for Pahala ("2026 Revised Pahala Implementation
Plan"). Respondent must follow applicable federal, Hawaii state, and local requirements for
design, construction, and operation of such facilities and shall diligently pursue all necessary
permits and approvals.The 2026 Revised Pahala Implementation Plan shall include steps for
obtaining all required permits and approvals.The 2026 Revised Pahala Implementation Plan
shall include a schedule and completion dates for each step required to implement the selected
alternative, provide wastewater services for 174 properties,and to close the Pahala Community
Cesspools no later than January 31, 2029.
b. Upon approval by EPA, Respondent shall implement the Pahala
Community Cesspool Closure Project in accordance with the provisions and schedule set forth
in the 2026 Revised Pahala Implementation Plan.
C. Na'alehu Community Cesspool Closure Project
34. Respondent shall fully and properly comply with the SDWA with respect to the
Na'alehu Community Cesspools identified in Paragraph 24, by providing wastewater treatment
that is protective of surface water and underground sources of drinking water for 194
properties in Na'alehu, including 164 properties that are currently connected to the Na'alehu
Community Cesspools, and closing the Na'alehu Community Cesspools.As soon as practicable,
but no later than the deadlines specified herein, Respondent shall complete the following
milestones to achieve compliance with the SDWA:
a. Na'alehu Implementation Plan.Within 60 days of receiving written
approval of the EID prepared pursuant to Paragraph 32.c, Respondent shall submit for EPA
approval an implementation plan for the selected project prepared by a licensed professional
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engineer identifying the steps required to design and implement the selected project for
Na'alehu ("Na alehu Implementation Plan"). Respondent must follow applicable federal,
Hawaii state, and local requirements for design, construction,and operation of such facilities
and shall diligently pursue all necessary permits and approvals.The Na'alehu Implementation
Plan shall include steps for obtaining all required permits and approvals.The Na'alehu
Implementation Plan shall include a schedule and completion dates for each step required to
implement the selected alternative, provide wastewater services for 194 properties, and to
close the Na'alehu Community Cesspools no later than December 31, 2032.
b. Upon approval by EPA, Respondent shall implement the Na'alehu
Community Cesspool Closure Project in accordance with the provisions and schedule set forth
in the Na'alehu Implementation Plan.
D. Outreach
35. Webpage.Starting on the effective date of this Consent Order, Respondent must
maintain a public webpage to keep EPA and the public informed of the status of the Community
Cesspool Closure Projects.The webpage must be updated at least monthly and must at a
minimum identify all milestones completed since the last update, post Semiannual Reports,and
provide a schedule of upcoming meetings and opportunities for public engagement.
Respondent shall submit the webpage address to EPA when the webpage becomes public and
shall include the status of webpage updates in the Semiannual Reports and Quarterly Meetings
with EPA.
36. Respondent shall maintain a list of persons interested in the Pahala and Na'alehu
Community Cesspool Closure Projects.The list shall include persons who have provided their
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contact information at a public meeting regarding the Pahala and Na'alehu Community
Cesspool Closure Projects, persons who have previously contacted Respondent regarding the
Projects,and persons who request that Respondent include them on the list.
37. Respondent shall provide notice of all public meetings and opportunities for
public engagement at least 14 days in advance by sending the notice to all persons identified on
the list in Paragraph 36,posting the notice on the homepage of the webpage required by
Paragraph 35, publishing the notice in local newspapers,and posting the notice at the Pahala
and Na'alehu Community Centers located at 96-1149 Kamani Street Pahala, Hi 96777 and 95-
5635 Mamalahoa Highway Na'alehu, Hi 96772 respectively, and at the facility where the
meeting will be held, if possible, if the public meeting is not held at one of the Community
Centers.
38. Public meetings shall be designed to foster an atmosphere that encourages
participation by being held in locations accessible to all community members that wish to
attend and that allow for maximum attendance by community members,and by occurring at
times selected to reasonably accommodate the schedules of community members that wish to
attend.
39. Respondent shall solicit public comment on a draft of each EID.The draft EID
shall include the nine components listed in Paragraph 32.c. Component ii) of each draft EID
shall tentatively identify Respondent's preferred option and provide a draft basis for the
tentative selection. Components vi)and vii)of the draft ElDs shall describe consultation
activities and public engagement that have already occurred and may contain placeholders for
any incomplete consultations and for the response to comments submitted by the public.The
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draft ElDs presented to the public shall be clearly labeled "Draft Environmental Information
Document—May be Subject to Change Based on Public Comments." For each project,
Respondent shall allow at least 30 days for the public to submit written comments on the draft
EID. During the public comment period for each project Respondent shall hold at least one
public meeting within the community where the project will take place. Notice of the
opportunity to submit written comments and/or public testimony shall be provided as specified
in Paragraph 37 and shall include instructions for submitting comments.The description of
public engagement in preparation of the ElDs submitted to EPA pursuant to Paragraph 32.c.vii
shall include a summary response document showing that Respondent has responded to all
substantive comments submitted by the public. Respondent shall post the document on the
webpage required by Paragraph 35.
40. Semiannual Outreach Meetings. Respondent shall hold public outreach meetings
at least twice per year,once in February and once in August to update the public on the status
of the cesspool closure projects required by this Consent Order.At these meetings Respondent
shall present the contents of the Semiannual Reports to the communities of Pahala and
Na'alehu.
E. General Requirements
41. Respondent shall inform the EPA in writing if any new information or
circumstances cause Respondent to modify any planned actions or schedule for achieving
compliance with this Consent Order. Respondent may,where appropriate, petition for an
extension of any deadline contained in Paragraph 32 through 34.Any such request should be
made according to the procedures set forth in Section V.H of this Consent Order. Extensions of
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any particular deadline shall only become effective upon approval by EPA and shall not affect
any other deadlines under this Consent Order not specifically addressed in the approved
extension.
42. Construction of the selected projects shall be considered complete once the
Hawaii Department of Health ("HDOH") issues necessary approvals to operate.
43. In complying with Paragraphs 33 and 34 of this Consent Order(cesspool
closures), Respondent must follow HDOH's well abandonment procedures and techniques and
any other requirements of HDOH's UIC program. Respondent shall notify HDOH when closure
of each LCC is complete. EPA will consider the LCCs to be closed when either(a) HDOH issues an
Injection Well Cesspool Backfilling Final Completion Report,or(b) Respondent submits to EPA a
completed Large Capacity Cesspool Backfilling Final Completion Report.
44. Respondent shall submit to EPA copies of HDOH's "Injection Well Cesspool
Backfilling Final Completion Report"for each cesspool referenced in this AOC within 10 days of
receipt from HDOH. Documents should be sent to the EPA Region 9 Compliance Officer, and the
EPA Region 9 LCC Project Coordinator at the addresses specified in Paragraphs 67 and 68 of this
Consent Order.
45. Respondent shall fully implement each requirement of this Consent Order,
including meeting the deadlines contained in Paragraphs 32 through 34 or any approved
modifications to the compliance schedules as set forth in Paragraph 82 of this Consent Order.
Respondent's failure to fully implement all requirements of this Consent Order in the manner
and timeframe required shall be deemed a violation of this Consent Order.
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46. Respondent's failure to comply with all of the applicable requirements of the
SDWA and 40 C.F.R. Part 144 may subject Respondent to additional enforcement actions,
including but not limited to judicial or administrative actions.
47. Where work under this AOC is being performed using federal grant funds directly
administered by EPA, including funds provided under Special Appropriation Grant XP-96942401,
Respondent shall ensure that the project schedule under such grant is consistent with the
requirements and schedules included in this Consent Order.
F. Stipulated Penalties
48. If Respondent fails to comply with any provision of this Consent Order,
Respondent agrees to pay upon EPA's demand the stipulated penalties set forth in this
Paragraph unless EPA has excused Respondent's delay according to the procedures provided in
Section V.H of this Consent Order.Stipulated penalties shall begin to accrue on the date
performance is due, and are calculated as follows:
a. $300 per day per violation for the first through the thirtieth day of
noncompliance;
b. $500 per day per violation for the thirty-first through the sixtieth day of
noncompliance;
c. $1000 per day per violation for the sixty-first day of violation and beyond.
49. Respondent must pay the stipulated penalty within 30 days of receipt of EPA's
stipulated penalty demand, according to the process provided in the demand. If any payment is
not received within 30 calendar days of being due, interest, handling charges, and late payment
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penalties will begin to accrue in the same manner as set forth at 31 U.S.C. §3717 and 40 C.F.R.
§ 13.11.
50. Neither the demand for, nor payment of, a stipulated penalty relieves
Respondent of the obligation to comply with any requirement or deadline of this Consent
Order.
51. EPA may, in the unreviewable exercise of its discretion,elect to pursue any other
administrative or judicial remedies in lieu of assessing some or all of the stipulated penalties
due under this Consent Order.
52. EPA may, in the unreviewable exercise of its discretion, reduce or waive
stipulated penalties due under this Consent Order.
53. Respondent may pay the stipulated penalty by check(mail or overnight delivery),
wire transfer, Automated Clearing House(ACH), or online payment. Payment instructions are
available at https://www.epa.gov/financial/makepayment. Payments made by a cashier's check
or certified check must be payable to the order of"Treasurer, United States of America," and
delivered to the following address:
U.S. Environmental Protection Agency
Fines and Penalties
Cincinnati Finance Center
P.O. Box 979077
St. Louis, Missouri 63197-9000
54. Respondent shall provide notice of stipulated penalty payments made pursuant
to Paragraph 48, accompanied by the title and docket number of this action,to the EPA Region
9 Compliance Officer at the address provided in Paragraph 67 below.
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G. Delays
55. "Day,"for purposes of this Consent Order, is defined to mean a calendar day,
except where otherwise specified.
56. "Force majeure,"for purposes of this Consent Order, is defined as any event
arising from causes beyond Respondent's control,the control of any entity controlled by
Respondent, or the control of Respondent's contractors,which delays or prevents the
performance of any obligation under this Consent Order, despite Respondent's reasonable best
efforts to fulfill the obligation.The requirement that Respondent exercise "reasonable best
efforts to fulfill the obligation" includes using reasonable best efforts to anticipate any potential
force majeure event and reasonable best efforts to address the effects of any such event as it is
occurring and/or after it has occurred,to prevent or minimize any resulting delay to the
greatest extent possible. Examples of events that are not force majeure include, but are not
limited to, increased costs or expenses of any work to be performed under this Consent Order,
failure to diligently pursue funding source(s)for work to be performed under this Consent
Order including federal and state funding sources, or normal inclement weather.
57. Respondent shall notify EPA in writing,within 10 business days,of any event that
occurs that causes or is likely to cause delay in compliance with any deadline specified in this
Consent Order.The notification should explain whether the delay was caused by force majeure,
as defined in Paragraph 56, should describe the measures Respondent has taken and/or will
take to prevent or minimize the delay, and should specify the timetable by which Respondent
intends to implement these measures to ensure compliance with the applicable requirement or
deadline. Respondent shall adopt all reasonable measures to avoid or minimize delay.Submittal
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of the notice to EPA required by this Paragraph does not, by itself, extend any deadline or
timeframe in this Consent Order.
58. If, upon receiving notice required under Paragraph 57, EPA agrees that the delay
or anticipated delay in compliance with this Consent Order has been or will be caused by
circumstances that constitute force majeure as defined in Paragraph 56,and upon request by
Respondent, EPA may extend the applicable compliance deadline. Modification of any
particular deadline shall not affect any other deadlines under this Consent Order unless
expressly authorized in writing by EPA.
59. Respondent has a burden of demonstrating, by a preponderance of the
evidence,that the actual or anticipated delay has been or will be caused by force majeure,that
the duration of the delay was, or will be warranted under the circumstances, that Respondent
exercised or is using its best efforts to avoid and mitigate the effects of the delay, and that
Respondent complied with the requirements of this subsection.
60. In the event that EPA does not agree that a delay in achieving compliance with
the requirements of this Consent Order has been or will be caused by force majeure, EPA will
notify Respondent in writing of EPA's decision and any delays will not be excused. EPA may
demand stipulated penalties for unexcused delay, as set forth in Section V.G. •
VI. REPORTING REQUIREMENTS
61. Semiannual Reports. Respondent shall submit compliance reports to the EPA
Region 9 Compliance Officer and the EPA Region 9 LCC Project Coordinator twice per year,with
the first report(covering the period January 1,2024 through June 30,2024) due on July 3,2024,
and the second report due on January 1, 2025.Subsequent reports shall be due on the first
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business day following each six-month period thereafter. Each compliance report shall discuss
Respondent's progress toward meeting the milestones specified in Sections V.A-V.E of this AOC.
Upon notification to Respondent, EPA may require additional status reports,or fewer status
reports, and/or request additional documentation to support the compliance reports for
purpose of documenting compliance with this AOC. Respondent shall continue to submit
semiannual compliance reports until this AOC has been terminated pursuant to the terms of
Section XIV(Termination)of this Consent Order.
62. Each compliance report must be accompanied by a certification from
Respondent's authorized representative that Respondent has met each milestone identified in
this AOC that falls within the preceding two quarters,or, if a milestone was missed,the
compliance report must describe why that milestone was missed and the date certain by which
it will be met.
63. Quarterly Meetings with EPA. Respondent must continue to convene quarterly
meetings (by teleconference or at a centralized meeting location)with EPA to discuss
Respondent's progress in complying with the requirements and schedules of this Consent
Order. Respondent shall be responsible for scheduling meetings required under this Paragraph
to occur no later than 20 days after the last day of every calendar quarter(i.e., by April 20th for
the period January through March, by July 20th for the period April through June, by October
20th for the period July through September, and by January 20th for the period October
through December). Respondent shall provide the EPA Compliance Officer and the EPA LCC
Project Coordinator with notice of the proposed meeting date at the addresses listed in
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Paragraphs 67 and 68 of this Consent Order at least 15 days in advance of the proposed
meeting.The first quarterly meeting shall take place no later than April 20, 2024.
VII. SUBMISSIONS AND NOTIFICATIONS
64. All information and documents submitted pursuant to this Consent Order shall
be signed by a duly authorized representative of the County of Hawaii.
65. The person signing Respondent's submissions under this Consent Order shall
make the following certification:
I certify under penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure that
qualified personnel properly gather and evaluate information submitted. Based on my
inquiry of the person or persons who manage the system, or those persons directly
responsible for gathering the information, I certify that the information submitted is,
to the best of my knowledge and belief, true,accurate, and complete. I am aware that
there are significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
66. Submissions by Respondent shall be deemed made on the date they are sent
electronically, or on the date postmarked if sent by U.S. mail. Electronic submissions are
preferred.
67. All submissions made pursuant to this Consent Order shall be sent to the EPA
Region 9 Compliance Officer at the following address:
Jelani Shareem
U.S. EPA Region 9
Enforcement and Compliance Assurance Division'
Drinking Water Section(ECAD 3-3)
75 Hawthorne Street
San Francisco, CA 94105
shareem.ielani@epa.gov
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68. Where the Consent Order so specifies,submissions shall also be sent to the EPA
Region 9 LCC Project Coordinator, at the following address:
Kate Rao
U.S. EPA Region 9
Water Division
Groundwater Protection Section (WTR 4-2)
75 Hawthorne Street
San Francisco,CA 94105
rao.kate@epa.gov
69. Approval of Deliverables. After review of any plan, report, or other item that is
required to be submitted under this Consent Decree, EPA will in writing: (a) approve the
submission; (b) approve the submission upon specified conditions; (c) approve part of the
submission and disapprove the remainder;or(d) disapprove the submission.
70. If the submission is approved under Paragraph 69(a), Respondent shall take all
actions required by the plan, report, or other document, in accordance with the schedules and
requirements of the plan, report, or other document,as approved. If the submission is
conditionally approved or approved only in part under Paragraph 69(b) or(c), Respondent shall,
upon written direction from EPA,take all actions required by the approved plan,report, or
other item that EPA determines are technically severable from any disapproved portions.
71. If the submission is disapproved in whole or in part under to Paragraph 69(c)or
(d), Respondent shall,within 30 days or such other time as the Parties agree to in writing,
correct all deficiencies and resubmit the plan, report, or other item, or disapproved portion
thereof,for approval, in accordance with the preceding Paragraphs. If the resubmission is
approved in whole or in part, Respondent shall proceed in accordance with the preceding
Paragraphs.
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72. If a resubmitted plan, report, or other item, or portion thereof, is disapproved in
whole or in part, EPA may again require Respondent to correct any deficiencies, in accordance
with the preceding Paragraphs,subject to the right of EPA to seek stipulated penalties as
provided in Section V.G.
VIII. RECORD PRESERVATION
73. Until 5 years after termination of this Consent Order,the Respondent shall
preserve and retain all records and documents now in its possession or control, or which come •
into its possession or control,that relate in any manner to the performance of the tasks in this
Consent Order. Until five years after termination of this Consent Order, the Respondent shall
also instruct its agents to preserve all documents, records,and information of whatever kind,
nature or description relating to the performance of the tasks in this Consent Order.
IX. SCOPE OF CONSENT ORDER
74. This Consent Order is not and shall not be construed to be a permit under the
SDWA, nor shall it in any way relieve or affect Respondent's obligations under the SDWA,or any
other applicable federal or State laws, regulations, or permits. Compliance with this Consent
Order shall not be a defense to any actions commenced pursuant to such applicable laws,
regulations,or permits, nor does it constitute a release.
75. Issuance of this Consent Order is not an election by EPA to forego any remedies
available to it under the law, including without limit any administrative, civil or criminal action
to seek penalties,fines,or other appropriate relief under the SDWA. EPA reserves all available
legal and equitable rights and remedies to enforce any violation cited in this Consent Order,
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and the right to seek recovery of any costs and attorney fees incurred by EPA in any actions
against Respondent for non-compliance with this Consent Order.
76. This Consent Order shall in no way affect the rights of EPA or the United States
against any person not a party hereto.
X. WAIVER
77. Respondent waives any and all remedies, claims for relief and otherwise
available rights or remedies to judicial or administrative review which Respondent may have
with respect to any issue of fact or law set forth in this Consent Order, including, but not limited
to, any right of judicial review of the Consent Order under the Administrative Procedure Act. 5
U.S.C. §§ 701-708.
Xl. INTEGRATION
78. Schedules, documents, plans, etc. that are developed pursuant to this Consent
Order become incorporated into this Consent Order upon written approval by EPA.
79. Any schedule for resubmission of deliverables established in accordance with
Paragraph 71 shall become incorporated into this Consent Order.
80. This Consent Order, and any documents that become incorporated into this
Consent Order pursuant to Paragraphs 78 and 79, constitute the final,complete and exclusive
agreement and understanding among the Parties with respect to the settlement embodied in
this Consent Order.The Parties acknowledge that there are no representations, agreements or
understanding relating to the settlement other than those expressly contained in this Consent
Order.
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XII. SEVERABILITY
81. The provisions of this Consent Order shall be severable. If any provision is
declared by a court of competent jurisdiction to be unenforceable,then the remaining
provisions shall remain in full force and effect.
XIII. MODIFICATIONS OF CONSENT ORDER
82. Modification of this Consent Order including any plans or schedules developed
pursuant thereto shall be in writing and shall take effect only when agreed to in writing by both
Parties.Any agreed upon Modification may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute the Modification.
XIV. TERMINATION
83. Upon completing the requirements set forth in Section V of this Consent Order,
including any Modifications thereto, Respondent shall submit a final written certification of
completion documenting the actions taken and that Respondent has complied with the
requirements of this Consent Order. Respondent's final written certification of completion shall
comply with the requirements set forth above in Paragraph 65.This Consent Order shall
terminate when EPA issues a written approval of Respondent's written certification that
Respondent has fully completed all work required under this Consent Order.
XV. PUBLIC NOTICE
84. EPA's consent to this Consent Order is subject to the requirements of section
1423(c)(3)(B)of the SDWA,42 U.S.C. §300h-2(c)(3)(B),that EPA provide public notice of,and
reasonable opportunity to comment on,any proposed Consent Order. EPA will publicly notice
this Consent Order and provide the opportunity to the public to comment for 30 days prior to it
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becoming effective pursuant to Paragraph 85. EPA reserves the right to withdraw or seek
modification to this Consent Order in response to public comments on the proposed Order. In
such case, Respondent will have no obligations under this Consent Order unless and until a
revised Consent Order is agreed upon by the Parties and finalized by EPA. Until such time, EPA
may pursue any and all enforcement options provided by law.
XVI. EFFECTIVE DATE
85. This Consent Order shall become effective no sooner than the end of the 30=day
comment period after signature by both EPA and Respondent, in accordance with Section XV,
and upon EPA's written notice to the Respondent identifying the Effective Date of the Order.
86. Revisions to this Consent Order shall become effective immediately upon
signature by the Parties.
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•
IT IS SO AGREED AND ORDERED:
For the County of Hawaii:
C. Kimo Alameda, Ph.D. Date
Mayor, County of Hawaii
APPROVED AS TO FORM AND LEGALITY:
RENEE N.C,SCHOEN, ESQ.
Corporation Counsel
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1
For U.S. Environmental Protection Agency, Region 9:
Amy C. Miller-Bowen, Director Date
Enforcement Division and Compliance Assurance Division
U.S. Environmental Protection Agency, Region 9
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